*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
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
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-
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