*1 afford Clearly, courts Ohio the state adjudi- opportunity to plaintiff an Haas They rights against Glueck.9 cate ques- ready provide forum to settle Moreover, as- the stock. tion title to preliminary suming disposition of the courts, it is question in the Ohio of title conceptualize circum-
not difficult possibility of permitting
stances against the Bank second action nonjoinder not be so problem will
acute. applying
Accordingly, Rule 19 test”, good
(b)’s “equity conscience did not hold that concluding that its discretion abuse party indispensable anwas Glueck dismissing Lumbard, this action. Judge, concurred part and dissented and filed Affirmed. opinion. FUCHSTADT, John Adams Plaintiff- Appellee,
v. America,
UNITED STATES of Defendant-Appellant.
No. Docket 35698. Appeals,
United States Court Second Circuit.
Argued March 1971. April
Decided response inquiry Ia Glueck action between Haas and court’s at oral state argument, pending. reported Haas’ counsel that a now
4Q1 KAUFMAN, IRVING Circuit R. Judge: This is the second of what appeal become a serialized traffic litigation accident removed from state into federal court under Federal Act, Tort Claims 28 et U.S.C. § Judge seq. jury, After a trial without a judgment Cannella awarded Fuchstadt a damages against for the United States in the amount of The Govern- finding appealed ment both from the solely employee its fault was at causing accident resulted plaintiff’s injuries, and from the amount awarded. 1970, opinion 9,
In an filed November 367, panel af- 434 F.2d a of this court Judge firmed lia- Cannella’s bility. consequently not That issue however, panel, before us now. That did also decided that the district 52(a) comply not be- F.R.Civ.P. cause it failed in sufficient to describe constituting detail the elements the basis plaintiff’s damages. Accordingly, cause was remanded to the district court appropriate for The dis- itemization. espe- trict court’s was directed attention following cially to the need to isolate the damage components of the award: expenditures Plaintiff's actual physicans hospitalization and attribut- operation; able to the future; earnings, past and type estimated and future cost expenses likely to be incurred award; and and thus includable past pain sums allowed for suffering. Meyerson, Brooklyn, Y. Bernard N. instructions, response panel’s In (Moe Broder, New Levine and Aaron J. Judge Cannella on November brief), plaintiff- City, York on setting filed his memorandum forth appellee. particularization for his basis damages $150,- award of in the sum of Morrison, Atty. Alan Asst. B. U. S. The Government continues (Whitney Seymour, Jr., North U. S. appeal maintain this second Atty. for the Southern District of New judgment Specifically, is excessive. York, brief), defendant-appel- on the challenges aspect of Cannel- each lant. itemization, exception of la’s with the LUMBARD, Judge, Before awarded for Judges. HAYS, bowling. enjoyment KAUFMAN and Circuit may In this case we the mand this disturb case to the district court findings time, compelled if court's second we feel to make “clearly erroneous,” they judge are F.R.Civ.P. the allocation which the district 52(a). Alexander should See Nash-Kelvina v. have made the first instance Corp., (2d failing that, tor 271 F.2d trial, upon Cir. 1959).1 remand. *3 Applying here, this standard feel we Included in the district allow- court’s compelled modify spe- to three items of charge expenses ance for medical was a damages specified by Judge cial Cannel- $2,592.50 by Hospital the Greenwich
la, namely those attributable to Fuchs- Finn, and a fee one of $500 Dr. two anticipated tadt’s immediate and operated plaintiff doctors who on and expenses, medical and his loss of future who first treated Fuchstadt when earning capacity. Although may we hospital. was admitted to the After an have awarded different sums with examination of the record con- we are spect to other itemized we are portion vinced that a of each of these able support to find in the record for gall costs must be attributed to the blad- findings. each of those operation, der which was unrelated to
the accident and for which there can be recovery. no A. SPECIAL DAMAGES major performed Finn twice Dr. Expenses 1. Immediate Medical surgery provided and related services appellant, for once to treat Fuchstadt’s Following his damaged injuries hip and other sus confined for about six the weeks to collision, tained the and later to reme Hospital Greenwich for Connecticut dy cholecystitis. undisputed his It severely injured hip treatment of his for Dr. Finn’s unitemized bill $500 injuries resulting and other from the ac- charges operations. included for both days cident. About twelve after he en- does, Since the record not that sur show tered plaintiff developed the gery was more difficult or otherwise cholecystitis, acute required the expensive likely to been more have surgical gall immediate removal of his instance, one or other we believe trial, plaintiff attempted bladder. At to light reasonable of the record before cholecystitis show that was caused us, to Finn’s to allocate one half Dr. Judge collision, the automobile but gall opera tal fee of to the bladder Cannella found otherwise. That against recovery tion. Fuchstadt’s put not been in issue here. In his accordingly must be reduced Government 18, Judge decision of November Cannella by $250. held that the accident caused medical ex- penses plaintiff, consisting to Hospital The Greenwich bill included of hos- pital bills, totaling $2,451.00 doctor an unitemized for sum of But, stay comply for failed Fuchstadt’s to six-week and $141 out-patient panel mandate of the dis- earlier treatment after he was court, requesting Judge charged. charge decision portion $2,451 of this A of the Cannella portion gall to isolate of Fuchs- also be attributed to the blad- expenses tadt’s operation. der attributable to Fuchstadt was admitted cholecystitis gall hospital 24, opera- February to bladder on tion. extraordinarily Since developed symptoms it would be chole- acute judicial wasteful cystitis 8, of our 1966, resources to re- on under- March imply Long We do not R., 156, 160, the same standard Island R. 393 U.S. 89 applies judge’s to (1968); Dag review of a trial refusal S.Ct. L.Ed.2d 309 trial, to order Long R., a new or direct a remit nello v. Island R. 289 F.2d titur, ground jury on (2 Cir., 1961). that a award damages is excessive. See Grunenthal v. ail- return to em- procedures Fuchstadt’s failure to operative went following day. Hospital ployment did sooner than he was attrib- ment requirement lift operation “was utable to the that he reveal that records heavy machinery job. in his former that Fuchstadt tolerated” well gall hip opera- recovery,” injury, good not the bladder post-operative “made a tion, permanently impaired having been removed “Levine tube activity. ability engage in strenuous For the duration March 1966.” Thus, support appar- find hospitalization, we the record appellant’s he was entirely ently given therapy allocation of item physical damaged accident. hip, not aware but we are
any post-operative treatment of sub- surgery be- stance for the yond Earnings Loss 3. Future Thus, March 12. conclude that *4 after found that Cannella during Fuchs- the costs incurred four of work, deterio- Fuchstadt returned to his days’ hospitalization be tadt’s should physical an rated average condition caused intervening cholecysti- attributed to his wages in amount of the Assuming tis. addi- that minor some per week. Since $20 gall treatment tional was related to the ap- accident, at the time of the the operation, bladder we will allocate some- remaining parently assumed that his percent what more than ten of Fuchs- working approximately be life would in-patient tadt’s care at the or years, resulting four in total lost future $300, cholecystitis, to his reduce will wages $4,160.00. recovery against the amount of his by Government like amount. Apparently per week $20 expenses represented The award for medical must sum the difference between charge by wage hourly be in- increased This his $70. Fuchstadt’s $4.00 by employment curred prior Fuchstadt for the services his to the accident and following discharge salary per a Dr. Milland hour later earned $3.60 generously hospital Rochelle, from the has been Vernon York, in New New Devices by called to em our attention the Govern- commenced where Fuchstadt Assuming August ployment ment as an item which the district court making average overlooked in for its about award. that Fuchstadt would ty week, per hours of before work sum, In we find that wage accident, weekly after coverable for Fuchstadt’s immediate Al would indeed to amount $20.00. hospital expenses medical and should be though there was other evidence by less than the amount calculated might record have Cannella court, $4,222.50. the district or a total of caused considered and which could have damages, we cannot him to award lesser Wages Immediate Loss of say that of Fuchstadt’s this calculation The Government concedes that earning sup capacity reduced is without wages $2,600 re Fuchstadt lost as a clearly port or erroneous. work, prolonged sult of his absence from However, correctly the Government period months, of about four immedi three, only approximately observes that ately following It con accident. years, and not remained between four tends, however, return that Fuchstadt’s em- left his former the date Fuchstadt delayed employment to his former was birthday. ployment Ac- 65th and his gall oper after-effects of his bladder cordingly, $4,160.00 the award of disagree. ation. We evidence well The earnings lost be reduced future should supports the conclusion that one-fourth, $1,040.- by approximately or long- operation had no such fu- find Fuchstadt’s lost 00. We thus range Furthermore, appears effects. earning sole, capacity to primary, ture be if reason not the sleeps, he he Expenses When current headaches. Medical 4. Future right is and he side lie on his Contrary to the Government’s by pain time. from time to awakened contention, supports find record wind- plaintiff’s struck the Because face ing Fuchstadt court that of the district during he shield of his ear likely un required to be would most perfectly normal almost all of his lost hip. dergo operation on his a future by means hip no teeth. however, calculation, The court’s now after treatments. mended even be operation would the cost of roughened up square head of has “a Finn $12,500 clearly Dr. erroneous. up operating poorly in a beaten femur operation would that the first testified expected to deteri- socket” which can be $15,000. But $10,000 and cost between indicates orate further. plaintiff record “seven this estimate to he reduced later likely develop ar- traumatic will post- eight its dollars.” In or thousand thritis, to whether or not submits memorandum, plaintiff asked trial leg surgery. has been further His left sum, $7,000-$8,000, no than this more permanently almost shortened expenses. con We future medical Finally, bear inch. he will continue to that Fuchs reasonable clude that it is inches), hip (eight upper scars ex anticipated tadt’s chin, lip, evidence This forehead. penses approximately will amount permanent physical debilitation persistent pain adequately supports the *5 district court’s award. B. PAIN AND SUFFERING stated, For the reasons find that at brunt of the Government’s district court’s calculation of judgment is tack the district court’s damages, by $6,520. reduced be $125,000 for of directed at its award Accordingly, judgment of the dis- present “past, and future trict court modified will be to award suffering.” pain We are of judgment plaintiff in amount clearly er is not view that this judgment $143,480. modified, As accident, plaintiff roneous. Prior to is affirmed. physical condition. was in excellent and was times a week bowled five LUMBARD, Judge (concurring trophies; he lifted winner of several dissenting part): regularly; weights mile walked a agree I Kaufman’s award day; employment preferred each and he $18,442.50 of a items for im- total of involving heavy, physical Follow labor. expenses, mediate and future medical it, ing and because wages, immediate and only twice to bowl able enjoyment bowling instead league.” “handicap weekly and with a the sum Dis- which was awarded weights. He cannot lift He is unable However, trict Court for these items. walk more than two or three blocks my opinion the award of the District light, accept only as one He can time. suffering grossly pain Court sembly-line employment. While generous excessive. A most allowance experienced constant Fuchstadt would be very little, pain, slept experienced recur headaches, According, modify judg- rent time was sus I and for a would tained drains in an and in ment of the arm District Court and direct entry judgment Appellant experience nose. continues to sum total leg pain constant and endures