*1 that, respond that these could lieve under the test an- tiffs abuses strict Goosby Osser, adequately supra, central fil- nounced controlled without filing pa- ing, complaint properly without or central could have dis- names, exploration the added effi- and that missed without further tients’ degree ciency price in filing terms of for not worth the of need is central in- cluding patients’ names on risk disclosure. the one hand, provisions adequacy and the something point this On last protect against or to malicious careless great risk turns on how While is. on disclosure the other. not condemn Constitution does order The of dismissal therefore re- is using in deal state ineffective means versed, with to the instructions district ing problem serious as the use as judge convening request of a opiates stimulants listed in three-judge court under 28 U.S.C. §§ II, may it condition use Schedule well temporary 2281 and The restrain- 2284. involves a effective means which order, court, modified danger pri constitutionally-protected hearing pending the before continued taking vacy pre reasonable of all peri- for such a court and such further limit risk. com cautions to any, may od, if that court then direct. plaints, and other material which we may notice, judicial are conclu take Although Dr.

sive on this score. Whal asserting may

en correct 3371(1) (a) intended to allow prescription disclosure of information working

Department of Health officials statutory language area, is so

in the open-ended exploration of how full Henry BEANLAND, Appellee, being confidentiality preserved inis fact required. may,be If it clear that were CHICAGO, AND PA- ROCK ISLAND proposed to take had taken or State RAILROAD CIFIC COMPA- by regulation steps, other effective Appellant. NY, wise, patients’ limit access No. 72-1446. rig prescription names forms as on the Appeals, Court of States idly accomplish as is consistent with Eighth Circuit. statutory purpose, ment of asserted Argued April 9, 1973. grounds attack constitutional might disappear. the district But May 17, Decided complaint was not entitled to dismiss on the assertions basis State’s already has done this. Su long ago

preme parte in Ex stated Court 4,3, 30, 32, Poresky, 290 U.S. 54 S.Ct. (1933), “The existence

78 L.Ed. 152 question of constitution of a substantial allega

ality determined must be complaint.” also

tions bill See Osser, Goosby supra, 409 at U.S. Looking at these alle n. gations, and also the Memorandum Temporary State Commission Drug an Evaluate the Laws which was moving plain nexed affidavit counsel, tiffs’ man and the various state

uals, may, think we do not be- as we we *2 Judge,

Bright, Circuit concurred opinion. filed involving

an accident his train No. 74 (1339), extra train 1339 on a siding Union, Missouri. Both trains preceding 74. were eastbound siding Union, permit At 1339 took a pass, taking siding, but after *3 siding realign failed the switch to permit proceed 74 to on the main track. warning placed crew of 1339 had The torpedoes on tracks west of sid ing had radio that and advised 74 siding. ap on When 1339 was proached siding p. h. at 35 40 m. torpedoes to slow it hit the and started down. Beanland testified that as 74 eastward, continued on he saw 1339 siding siding but notice did not that the open. switch was still He testified that “highball” given signal by he was one then the crew members 1339 and speed. approached his As increased switch, feet within Beanland open.1 threw noticed switch was He emergency braking, train into but Mo., Odegard, City, Kansas David being stop time, jumped unable in he appellant. for rammed out side of it. then appel- Mo., Monett, for Gardner, B. Jo siding. on into the rear end of 1339 lee. was In the collision brakeman on 74 injured in and was killed Beanland BRIGHT, GIBSON, Before jumping. Beanland was later dis Judges. ROSS, Circuit charged Rock Island. an in the Beanland commenced action Judge. ROSS, Circuit separate alleging causes trial court three Chicago, Rail- Rock Island Pacific action: The was under F.E.L.A. first Island) brought Company (Rock road negligence injuries due to for appeal judgment from a obtained this wrong Island; Rock the second was for (Beanland) Henry an in L. Beanland alleged discharge, his ful an breach of jury a ver- The returned E.L.A. action. contract; employment was the third $275,000.00, and in the amount dict conspiracy of of Rock Island and its for for a motion denied the district court discharging wrongfully ficers in Bean- trial, F.Supp. reverse 220. We new The ordered that land. trial court new trial. directions to hold a separately,2 this count be tried first engineer Beanland, appeal Is first is from the trial an 25, 1970, in land, injured March count. on point Judge he 2. before trial Oliver eliminat- that at Just

1. Beanland testified “switching banner” visi ed from trial counts noticed devices, discharge punitive damages “Switching are and the banners” ble. “targets” He “switch in claimed connection therewith. referred to also sepa- shape going targets” he stated “was order which are basically portion feet trial about five rate discs and located round ordinary gar- presents an the full circular I which rail. Count above the When engineer variety oncoming appears case.” den F.E.L.A. disc open. then, proceeded to him the switch is that basis. it warns appeal, alleges On this Rock Island in connection with his dis- trial, including charge several errors lowing the fol- and that the evidence concern- : depression or withdrawal symptoms regarding discharge allowing evi- erred regard to be considered giving dence and in an instruction your plaintiff’s determination of the plaintiff’s that the at the distress physical and future and men- plain- brakeman’s death and the separate tal condition but not ele- as a discharge tiff’s plaintiff’s were elements of damage. ment of damages. “You are further instructed that failing The court erred to in- plaintiff’s concerning the evidence “present clude a worth” instruc- Gary reaction to death of Sehles- charge tion in jury ner was admitted for sub- [brakeman] refusing both defendant’s *4 stantially purpose. the same limited proffered instructions, thereby re- words, you In other are instructed sulting in an excessive verdict. plaintiff may any that the damages not recover 3. The court erred in its refusal to any depression for or with- allow various witnesses of defend- symptoms you may drawal which find testify meaning ant to as to the have resulted from the the death -of certain railroad and rules the cus- you may, however, brakeman but con- practice applying tom and those many sider that evidence as one of the rules. facts and in evidence circumstances determining you which will assist I. EVIDENCE AND INSTRUC- plaintiff’s present and future TIONS ON AND DISCHARGE physical and mental condition but not DEATH OF BRAKEMAN separate damage.” as a element of though case, In the trial of this even argues Rock Island that the trial court separate trial had ordered a allowing plaintiff hypothe- erred to toas Beanland’s second third brakeman, size the death own his relating discharge, counts to unlawful discharge and his mental there- distress permitted, Beanland’s counsel was over from, witnesses, each of his medical repeated objections, to ask several medi- proper since neither of the factors were hypothetical questions cal witnesses damages anguish elements of for mental assumptions which made certain under the circumstances of ease. discharge to his and to the death of his Rock Island further contends friend, the brakeman. witnesses given by instruction the trial court set following: were asked to assume the permitted jury forth above to con- brakeman, head a close friend “[T]he discharge sider the death and in deter- plaintiff, plain- was killed and the mining damages plaintiff’s for future discharged by tiff was the railroad physical and mental condition. Bean- physically and has been unable damages flowing land contends that the injury, work since the and has suf- discharge proper from the were consid- depression fered from mental erations as it anwas intentional act of worry condition, job, about his loss of clearly put which blame being discharged because on Beanland for death of brake- physical inability work, and be- man, and furthermore since testimo- cause of his friend’s death in colli- ny of the medical related the witnesses sion.” injury worry physical mental to the jury regarding trauma, In the instructions to the for such an- mental guish proper the effect of these assumed facts on were herein. Beanland, the district court stated: agree must with Rock We Island that challenged hypothetical question “You are therefore instructed that plaintiff clearly brought may any jury, not be awarded before the sev-

H3 acts, Damages resulting occasions, improper from intentional considera- eral an discharge place discharge, have in a as the no of the of the effect tion personal injury which which could F.E.L.A. action the death brakeman negligence. exclusively decision deals influenced their have fact, an And it would action of the verdict. U.S.C. amount wrongful discharge given by appropriately appear would that the instruction also cognizable little, anything, if at all trial court did contract and improper questioning. Al- under 45 U.S.C. 51. cure ambiguous, though the instruction question related of mental suffer- ju- interpreted by have could resulting from the of Beanland permit consider the men- them to rors separate- must death of the brakeman resulting anguish, plaintiff tal Supreme ly Court has considered. The discharge Beanland and from the foreseeability of stated “reasonable assessing brakeman, death of the ingredient Fed- harm is an essential damages. Employers’ Liability negli- eral Act gence.” mental The evidence of Beanland’s v. Baltimore & Ohio Gallick suffering 108, 117, related not to the direct injuries also received in the accident but L.Ed.2d discharge and the the effect general indicia of the foresee- Certain example, brakeman. For death suffering ability mental Moseley testimony Dr. included *5 person anguish one is the when a third following questions arid answers: negligence against particular whom the directed are set forth in D’Ambra is worry, “Q. his men- And about how States, (D. F.Supp. 810, 819 feeling? anguish, depressed A. tal R.I.1973), tort act a federal claims perma- hopefully Well, is not a the Court stated: case wherein certainly problem, it has nent but significant portion total “ of his a case, determining, in such a ‘In you up date. When care to medical reasonably should defendant whether income, job, as and hurt no no have or, injury plaintiff, to foresee the hurt, get you a this man is much as terminology, other whether defendant quite depression can that reactive plaintiff duty care, of due owes fact, disabling prob- In is a severe. fac- into account such will courts take lem. following: tors as the Q. in the accident Loss of friend (1) plaintiff located was Whether A. This to that? also related as of the accident near the scene contributing App. it.” at to a dis- one who was contrasted with added.) (Emphasis away it. tance from (2) shock resulted Whether trial court removed Once the impact upon from a direct emotional discharge of this from trial the case, issue sensory plaintiff con- from the should thereto evidence temporaneous ac- observance of only excluded, it relat have been as learning cident, as contrasted by plaintiff, suffered ed to after its of the accident from others of defense also as it related but occurrence. Kelly v. contributory negligence. See (3) York, the vic- & Hartford Whether New New Haven closely related, (D.Mass. as con- F.Supp. tim were 83-84 (later Judge rela- any of trasted with an absence in which District Bailey tionship presence Circuit) of Judge or the of First Chief ” relationship.’ also W. conclusion. distant See same Aldrich reached the Prosser, of Torts Arkansas Law Anderson v. Louisiana Cf. 1972). 1964). (3d Ry., ed. analyzed did not correct this mis- question the trial court has been This that way: the failure to make take that in this Prosser preju- instructions was correction entirely unreasonable an “It would be dicial error. activity if the human all burden on endangered one who has defendant II. PRESENT WORTH INSTRUC- pay compelled to be man were TION feelings every other lacerated give it, in- court refused to district person reason disturbed requested cluding bystander Rock Island rel- shocked at an instruction every reducing future every the award for ative to accident, distant relative earnings present injured, worth.3 person as well as loss its danger initially Although judge of- had obviously the trial And friends. point necessity claims, with what fered instruct on this fictitious genuineness, guarantee are the “rule thumb” was referred some present greater It is instruction4 Rock worth here than before. even judge objected thereto and the considerations no doubt extremely present give any cau- law failed to instruction made the have Prosser, Torts Law at all. tious.” W. value (3d ed. Supreme of the United Court spoken directly on the neces- States has Beanland claims Here sity of reduction of future benefits negli solely by the caused accident was case. worth an F.E.L.A. employees; he gence railroad of other Chesapeake Ry. v. & O. its decision Kelly, actually position witness not in 485, 489-490, 36 S.Ct. and there brakeman the death 60 L.Ed. 1117 showing (at least the evidence nowas stated: Court appendix) included any friend to upon of a far a verdict brakeman is based “So benefits, deprivation co-workers. than his other it will of future Beanland *6 jury circumstances, compensation if it Under these afford more than permitted by aggregating con up not have been the bene- should be made taking of the the death effect that account of the sider the fits without suffering earning money power on mental had brakeman of the plaintiff. presently of the awarded. It is self-ev- be money given in a sum of ident that hold that the trial therefore We hand is like sum worth than the permitting in court erred money payable of in the future. hypothesize death of the brake rule, . in all discharge, “. . a [A]s and his his own man and suppose resulting cases where it is reasonable to therefrom, mental distress may safely that upon interest be earned questioning his medical witnesses. We by awarded, the given the amount that is the instructions also hold that Ry., F.Supp. 33, (W.D.Mich. present 305 34 of a Island’s initial Rock offer 1969), rev’d, (6th 1970) instruction, 424 F.2d 547 Cir. W. Matlies was from worth (per curiam). Jury Devitt, It instructs follows: Federal Practice & E. 76.12 at 433 Instructions present “To determine the cash value or ultimately However, of- the instruction earnings, any, worth of future if loss of the revision a modified form of fered was you may award, you may which use the appearing 76.12, in E. revision such §of following rule of thumb: discount Jury Blackmar, Federal & C. Devitt by reduce the estimated future loss at 205- limiting Instructions 78.13 Practice & per equal years cent to the number of (1970), the modification 206 is assumed that the loss will be sus- earnings. lost future reduction words, tained. In other in the illustra- ap- gave, instruction was tion which I I think I 4. The “rule of thumb” referred to judge 21-year period parently expectancy. from the trial of work conceived Chesapeake per & O. You discount the total 21 the case of cent.” Sleeman

115 ought to III. AND benefits INTERPRETATION future ascertained up OPER- making OF CONSTRUCTION discounted ATING RULES award.” attempted, Rock on two differ- recognized in specifically This rule occasions, into evidence ent to introduce Chesa Sleeman the F.E.L.A. employees testimony rela- railroad 305, 307-308 Ry., F.2d peake 414 O.& meaning interpretation tive to 1969) re the Court (6th wherein Cir. certain terms relevant to Rock Is- recomputation of “for the case manded contributory negli- land’s defense present . . based . being gence, found said terms supra. Kelly, Id. formula” worth Operating Code of Island’s Uniform applicability of reduction flag- specifically phrase Rules, “safe ac present likewise worth has ging 11(a). found Rule distance” involving knowledged cases other Rule, pertinent part provides as That g., Blue e. Acts. See or related E.L.A. follows: 487, Ry. Ala., F.2d 469 v. Western denied, explosion torpedoes U. 1972), (5th 410 “The two is a cert. 496 Cir. signal 1422,” immediately speed 688 L.Ed.2d reduce 956, S.Ct. 35 93 S. proceed flagging R. of for a safe dis- (1973); Central R. Ballantine Cir.), Speed.” (3d 540, tance Jersey, at Restricted 544 F.2d New Ballantyne Rail v. Central denied, cert. excerpt This from Code the Uniform road, into was offered evidence as “Plaintiff’s (1972); v. Konink Yodice Ed.2d 133 along portions Exhibit other 16” Maat lijke Stoomboot Nederlandsche Operating term Rules. The “Re- said (2nd schappij, Cir. 443 F.2d portion Speed” stricted defined in a Judge Friendly 1971), (wherein states exhibit, did not de- but the Rules request fu for the award for that the flagging phrase distance.” fine the “safe earnings discounted to be ture lost attempted For that reason Rock Island many so “in line with value was testimony Ham, to elicit from Mr. controlling, decisions familiar safety Island, and officer of Rock from supererogato citation would extended general Gray, an Mr. manager assistant 77-78); Taylor ry.” v. Denver Id. at Island, of Rock cus- F.2d and Rio Grande Western tomary phrase interpretation given this 1971); (10th Petition Cir. rules and familiar with the those Corp., United States Steel profession. practices of the railroad cert. judge admission denied *7 denied, Lamp Steel v. United States testimony ground on the that word- 987, 1649, L. Corp., 91 29 U.S. S.Ct. 402 11(a) and did not of Rule was clear (1971); v. United Downie Ed.2d 153 require to its extrinsic evidence as (3d Co., 344, F.2d Lines 359 347 States Cir.), meaning. argues Rock that 897, denied, 87 cert. 385 S.Ct. U.S. testimony prejudi- exclusion was of this Pennsyl (1966); 201, L.Ed.2d 17 130 cial error. 262, McKinley, F.2d vania R. v. 288 Chicago (6th 1961); it & W. At the outset should be noted 264 Cir. N. (8th Candler, Ry. 881, Cir. that whether one this v. 283 F. 884 characterizes as explana interpretation 1922). question of flagging phrase tion of dis “safe 11(a) tance” it to Rule or one as relates of the trial court The failure practice applying in proffered or said give, custom Rock instruction attempted Rule, purpose offer is forth in E. Devitt Island which set meaning explain jurors Blackmar, Jury & was to Practice Federal C. usage phrase ordinary in of this at 205-206 Instructions 78.13 operations of Rock Island. prejudicial of the trains error. 116 previously ject

Beanland had inquiry jurors testified on is one which experience qualifications cross-examination that he familiar normal laymen with Rule 11 and he has fulfilled would not able to decide speed rules as restricted on a solid basis without technical having “sufficient Rock distance” and Island’s assistance of one knowledge unusual purpose attempting subject by obvious to adduce reason testimony the excluded skill, experience, was to rebut that education in the or had, particular of Beanland show that he field.” See also v. Schillie fact, proceeded speed Atchison, at a Ry., restricted T. & F. 222 F.2d S. flagging distance, 810, (8th for a safe 815 Cir. failure to do so contributed the acci g., Detroit, Ry. See e. T. & I. v. Ban dent, attempt all in an to diminish (6th ning, Cir.), 752, F.2d 173 756 cert. damages.5 denied, 815, 54, 338 U.S. 70 94 L. S.Ct. (1949); Atchison, 493 Ed. T. & S. Generally, in situations where Ry. Simmons, 206, v. 153 F.2d 208-209 . written instruments contain words (10th 1946); Gulf, Cir. Cruce v. Mobile usage which have a technical trade R.R., 1138, & Ohio 674, 361 Mo. 238 S.W.2d meaning jurors which the are conse (1951). 678 In this quently intelligently interpret, unable to testimony of what was meant “safe expert extrinsic evidence the form of flagging distance” insofar it related testimony explain is allowed to subsequent to Beanland’s action to 74 Wigmore, written terms. 7 J. Evidence hitting torpedoes reducing (1940). g., 1955 at 85-86 See e. Kni speed was that of Beanland himself. erim v. Erie Lackawanna R. 424 F.2d permitted Rock Island should have been 745, (2nd 1970); 748 Cir. v. Carter At testimony to answer this its own Bay Ry., lanta & St. Andrews F.2d 170 expert opinion as to what constitutes 719, (5th 1948), 721 Cir. rev’d other flagging safe distance. grounds, 430, 226, 70 S.Ct. Wiggins (1949); Powell, L.Ed. 236 view of the decision we have 751, (5th Cir.), points cert. reached first three denied, appeal, U.S. Island’s do not deem we (1941); Finnegan Ed. 520 necessary assign- Missouri reach other Ry., Pac. 261 Mo. 169 S.W. ments of error. competent Also, expert testimo Reversed and remanded with direc- ny generally admissible in cases tions to hold a trial. new volving operations of a railroad which necessarily peculiar involve BRIGHT, Judge facts (concurring). Circuit railroading. to such repre ‘Such eases Judge I opinion concur in Ross’ specific applications general sent including case, requirement of an rule enunciated in the case Associated instruction on the worth of fu- Dry Corp. Drake, Goods 394 F.2d earnings. ture ever, believe, loss of I how- to-wit: fairness re- general “It is the expert quires rule tes- of.likely consideration increases *8 timony appropriate earnings when the sub- in future attributable to offset- judge’s rejection 5. The trial R., 208, 210, of the testi- Grande R. 375 U.S. 84 S.Ct. mony appears partially 291, to have ; at- 11 L.Ed.2d 256 New York tributed to his Marcone, concern 345, that said evidence Central R. v. 281 U.S. assumption 350, related to 294, of risk 50 S.Ct. 74 L.Ed. 892 abrogated which partial has been contributory neg- in F.E.L.A. This defense of (App. 175). Although cases ligence it is true cannot be denied the railroad mere- assumption longer applies ly of risk no because the evidence thereto cases, may pertinent F.E.L.A. assumption the defense of contribu- also be tory negligence g., Murray York, remains viable to the ex- risk. See e. v. New recovery. tent diminishes 45 New & U.S. Haven Hartford R. 255 F.2d § O. 53. 42, (2nd See Dennis v. Denver & Rio 44 Cir.

117 inflationary trends ting changes light

economy.1 years, past picture for the 40 economic should present-worth instruction by appropriate comment

supplemented jury to take permitting the in future increases into account likely

earnings may occur dol- value decreases in the

offset

lar. MARTINEZ-MARTINEZ,

Hipolito Petitioner,

v. NATURALIZA AND

IMMIGRATION Respondent. SERVICE, TION No. 73-1302

Summary Calendar.* Appeals,

United States Court Fifth Circuit. 11,

June Paso, Tex., Armendariz, Sr., El

Albert petitioner. ; (D.S.C.1967) (wrongful action) question, death While courts are divided on Co., Drilling inflationary but see v. Penrod trends Johnson consideration ; 897, (5th 1972) computing earnings 469 F.2d 904-906 Cir. future loss of has been Corp., approved Petition of States Steel 436 who United 1256, (6th F.2d 1279 cert. de lost a foot in a train accident. Pierce Cir. nied, 1649, Co., 91 29 v. New York Central R. R. (1971) ; Supp. (W.D.Mich.1969). v. Chesa Ed.2d 153 Sleeman See Will- peake Ry. Co., Corp., 414 F.2d F.2d 359- Ohio Hertz (6th ; 1969) (6th 1971) ; Williams Pac. Cir. Cir. Southern of. of. 1970) States, (1st Zehnle, Cir. 163 F.2d Co. (wrongful action). 1947) action) ; (wrongful death death *9 Sommers, (M.D. Golden v. 56 F.R.D. * Cir); Enterprises, Pa.1972) (no prejudice plain- allowing Rule 5th see Isbell Casualty Y., inflation) ; N. Inc. Citizens Co. of tiff’s reference to Brooks States, F.Supp. 619, I Part