550 F. Supp. 888 | E.D. Mich. | 1982
MEMORANDUM OPINION
In this civil action, plaintiff seeks to recover accidental death benefits under three separate insurance policies for the death of her husband. Plaintiff asserts that she is entitled to the benefits because the decedent accidentally drowned in a hotel swimming pool. Defendants contend that plaintiff is not entitled to accidental death benefits because the decedent died as a result of fatal heart diseases which led to heart failure in the swimming pool.
The case was tried by the Court. In addition to testifying herself, plaintiff called as witnesses Larry Wright, her husband’s supervisor, and Dr. Werner Spitz, a forensic pathologist. Plaintiff also introduced the deposition testimony of Monica Clements and a written statement of Roy Brightharp. Defendants called as their only witness Dr. Charles Hirsch, the forensic pathologist who performed the autopsy. After careful consideration of all the testimony and all the exhibits received into evidence, the Court makes the following findings of facts and conclusions of law as required by Fed.R.Civ.Pro. 52.
The decedent, Leon Van Hook, was insured for accidental death benefits under three separate insurance policies. The plaintiff, Helen J. Van Hook, is the named beneficiary under each policy. The first policy was issued by defendant Aetna Life Insurance Co. (Aetna) in the amount of one hundred thousand dollars. The second policy was issued by defendant Metropolitan Life Insurance Co. (Metropolitan) in the amount of fifty thousand dollars. The third policy was issued by defendant American Motorists Life Insurance Co. (American Motorists) in the amount of fifty thousand dollars.
The policy issued by American Motorists does not contain either a sole cause clause or an exclusionary clause. When a policy does not contain these clauses, plaintiff bears the burden of proving by a preponderance of the evidence that the deceased sustained an accidental injury that was the efficient proximate cause of death. A pre-existing disease does not preclude recovery if death results from a combination of accidental injury and the pre-existing disease. See Koycheff v. Mutual Benefit Health & Accident Ass’n., 305 Mich. 660, 9 N.W.2d 883 (1943); Sanborn v. Income Guaranty Co., 244 Mich. 99, 221 N.W. 162 (1928); Berger v. Travelers Ins. Co., supra. In this case, plaintiff must satisfy this burden in order to recover under the policy issued by American Motorists.
The evidence showed that Mr. Van Hook, who was fifty years old, was a fairly vigorous man with no physical complaints. He was employed as a technical sales engineer by Oxford Chemical Co. As part of his job, he was required to carry sample cases weighing approximately fifty pounds. He was often required to lift barrels weighing up to one hundred pounds and to push barrels weighing between four hundred and five hundred pounds. Every morning before going to work Mr. Van Hook and his wife jogged about two miles.
On August 1,1980, Mr. Van Hook left his home at about 6:30 a.m. to travel to a sales convention of his employer. The convention was held at the Drawbridge Inn in Covington, Kentucky. From 8:00 a.m. until 5:00 p.m. Mr. Van Hook attended a sales meeting. That evening he went to a cocktail party and dinner sponsored by his employer. After dinner Mr. Van Hook’s supervisor measured him for a ring for outstanding sales achievement to be awarded the following year. Afterwards, Mr. Van Hook went to a room where other salesmen and managers were talking business, singing, and arm-wrestling. Mr. Van Hook joined in these activities. Many of the salesmen and managers were drinking alcoholic beverages. Although there is no testimony that Mr. Van Hook was observed drinking at this time, two nearly-empty bottles of sherry were found in his room after his death.
There was a jazz festival in the area and the Drawbridge Inn had its indoor swimming pool open with four lifeguards on duty. The pool was forty feet long and twenty-two feet wide. It was three feet deep at the shallow end and got progressively deeper to a depth of nine feet. It was eighteen feet eight inches from the end of the pool at the deep end to the point at which the depth was six feet. A ledge that
At approximately 4:00 a.m. on August 2, 1980, Mr. Vqn Hook was seen in his street clothes by the indoor pool at the Drawbridge Inn. He left the pool and returned a short time later in his swimming trunks. Mr. Van Hook entered the pool and talked to Dale and Monica Clements and Pat Baskerville, who were already in the pool. Neither Monica Clements nor Roy Brightharp, who was also in the pool, observed any indication that Mr. Van Hook was drunk or inebriated when he entered the pool. For approximately fifteen minutes Mr. Van Hook taught Monica Clements how to swim underwater. After the swimming instructions, Dale and Monica Clements and Pat Baskerville left the pool and joined a group of people sitting at a poolside table. Roy Brightharp and Elmer Perciful remained in the pool for approximately fifteen minutes after Monica Clements and the others left the pool. Mr. Brightharp observed that Mr. Van Hook could swim. He saw Mr. Van Hook swimming back and forth the length of the pool, sometimes underwater.
For a period of approximately twenty minutes after Monica Clements left the pool, no one, including the four life guards, Mrs. Clements and her party, and Elmer Perciful and Roy Brightharp, observed anything unusual or noticed that Mr. Van Hook was missing. Monica Clements and the other persons sitting at her table could observe anyone who went into or got out of the pool. The four lifeguards were talking to and drinking with the guests at the poolside tables. For part of the time, the lifeguards were not seated in the proper viewing area. They could not view the entire pool, particularly the bottom, from the area where they were socializing with the guests.
Approximately twenty minutes after Monica Clements left the pool, one of the lifeguards noticed that Mr. Van Hook lay motionless on the bottom of the pool at the deep end. The lifeguard jumped into the pool and retrieved him. The lifeguard swam with the unconscious Mr. Van Hook from the deep end to the shallow end of the pool. Mr. Van Hook was removed and placed on the pool deck. His stomach was swollen and noticeably larger than it was when he went into the pool. The lifeguards immediately attempted to resuscitate Mr. Van Hook and a large amount of water came out of his mouth. The resuscitation efforts were unsuccessful. Mr. Van Hook was pronounced dead on arrival at the hospital.
At approximately 11:00 a.m. on August 2, 1980, Dr. Charles Hirsch, Deputy Coroner for Hamilton County, Ohio, performed an autopsy on the body of Mr. Van Hook. Based on the findings he made at the autopsy, Dr. Hirsch concluded several days later that the cause of death of Mr. Van Hook was hypertensive and arteriosclerotic cardiovascular disease.
During the trial, plaintiff called Dr. Werner Spitz, a forensic pathologist, as an expert witness. Dr. Spitz testified that it was his opinion that Mr. Van Hook died solely as a result of drowning in the pool. Defendants called Dr. Hirsch as an expert witness. Dr. Hirsch testified that it was still his opinion that Mr. Van Hook died from hypertensive and arteriosclerotic heart disease and not drowning. Although at the time of the autopsy Dr. Hirsch did not have available all of the information which Dr. Spitz subsequently reviewed, Dr. Hirsch’s opinion at the trial was based on essentially the same information which formed the basis of Dr. Spitz’s opinion.
The experts agreed that they did not observe any recent structural change in Mr. Van Hook’s heart indicating a coronary thrombosis or a myocardial infarction. The experts further agreed, however, that arteriosclerotic and hypertensive heart disease-can result in an arrhythmia, which is a disturbance of the rhythm of the heart caused by a malfunction of the heart’s electrical system. They agreed that an arrhythmia is a fatal condition that causes the heart to cease pumping blood to the body effectively and can result in unconsciousness in ten to fifteen seconds. They also agreed that an arrhythmia cannot be observed after death because it is an electrical event which does not cause any structural change in the heart.
The two experts agreed that there are no medical tests or findings that can conclusively establish death by drowning. They disagreed, however, about the medical standard that should be applied to diagnose drowning as a cause of death. Dr. Spitz admitted that a diagnosis of drowning can only be established when a pathologist has excluded all other probable causes of death, including the likely natural causes of death. He also admitted that a diagnosis of drowning can only be corroborated after a pathologist has evaluated all possible criteria in their entirety, especially the autopsy findings and the environmental conditions in which the victim is found. Dr. Spitz testified, however, that if a person is recovered from a body of water and there is no cause of death that can be documented as instantaneous, then it must be concluded that inhalation of water occurred causing drowning. Dr. Hirsch strongly disagreed with this standard applied by Dr. Spitz. Dr. Hirsch stated that the standard applied by Dr. Spitz is contrary to the accepted medical standard for diagnosing drowning which Dr. Spitz himself has set forth in his own article on drowning.
The two experts disagreed about the significance of the pathological findings concerning the condition of Mr. Van Hook’s heart. Dr. Spitz admitted that Mr. Van Hook had been “a very sick man’’ with advanced heart disease as reflected in the autopsy findings of arteriosclerosis, hypertension, and enlarged heart size. He testified, however, that he was unable to find any indication of a cause of death that was instantaneous. He stated that there is nothing to indicate a heart failure, a myocardial infarction, a coronary thrombosis, or an acute episode that would cause the heart to lapse into arrhythmia. He admitted that an arrhythmia could cause disturbance of
Dr. Hirsch testified that the pathological findings reflect heart diseases that may cause arrhythmia. He distinguished between instantaneous' death, which occurs within thirty seconds of the onset of symptoms, and sudden death, which occurs between thirty seconds and a few hours after the onset of symptoms. He relied on an article that he considered the most thorough study of hearts of persons who die suddenly or instantaneously from coronary disease.
The experts also disagree about the significance of some of the circumstances surrounding Mr. Van Hook’s death. A blood sample taken from Mr. Van Hook after his body was removed from the pool indicated a blood alcohol content of .134 mg. Dr. Spitz testified that when a person drowns in fresh water a large amount of water is absorbed into the bloodstream which dilutes the substances that circulate in the blood. He stated that the blood alcohol level of Mr. Van Hook could have been as high as .18 mg. before he drowned because the blood alcohol level can be diluted up to one-third when a person drowns in fresh water. Dr. Spitz testified that a blood alcohol content of .134 mg. would result in significant reduction of critical judgment, lack of recognition of danger, easier confusion, and slowed reaction time. Dr. Hirsch agreed that the level of alcohol in Mr. Van Hook’s blood was sufficient to cause impairment of coordination, reflexes, and judgment. Dr. Hirsch also stated, however, that it would not cause a person to lose consciousness unless he was unusually susceptible to the effects of alcohol. He stated that it would not have caused incapacitation in the pool which would have made a person unresponsive to submerging in water. Dr. Hirsch observed that Mr. Van Hook would have to have absorbed two and a third quarts of water to dilute a blood alcohol level of .18 mg. to .134 mg. He also noted that the witnesses who saw Mr. Van Hook before he submerged indicated that he was not noticeably drunk or inebriated. Dr. Hirsch concluded that although Mr. Van Hook may have been overconfident because of the effects of alcohol, he was not so intoxicated that he passed out in the water and sunk like a stone without struggling.
Dr. Spitz also testified that a person swimming underwater can lose conscious
Dr. Spitz testified that the pathological findings showed that Mr. Van Hook’s right lung weighed 905 grams and his left lung weighed 745 grams. Dr. Spitz stated that those weights reflect an accumulation of fluids, or edema, which is excessive. Although Dr. Spitz testified that fluid in the lungs means nothing in and of itself, he later modified his testimony. He stated that if this accumulation of fluids in the lungs of a person was due to arteriosclerotic or hypertensive heart disease, the person would be a sick person who was unable to go swimming. He testified that the water causing the excessive weight of Mr. Van Hook’s lungs was water that was inhaled in the process of drowning. Dr. Hirsch admitted that the weight of Mr. Van Hook’s lungs was abnormal. He testified, however, that the fact that the lungs are abnormally heavy is not significant in and of itself. He stated that he could not tell whether a person with abnormally heavy lungs is ill unless he knew the reason why the lungs were abnormally heavy.
Dr. Spitz testified that the presence of water in the stomach is one of the criteria that shows that death occurred by drowning because there is no way for water to get into the stomach unless it is swallowed before death. He explained that water cannot reach the stomach after death because the esophagus is a collapsed tube which does not allow water to pass through after death. Although there is no clear evidence about the amount of water expelled from Mr. Van Hook’s stomach, Dr. Spitz concluded that the presence of water in the stomach indicated that Mr. Van Hook inhaled the water while drowning. He also stated that the water in Mr. Van Hook’s stomach could not have been swallowed in the ten to fifteen second period between the onset of arrhythmia and the onset of unconsciousness. Dr. Spitz admitted that he had written in his chapter on drowning that water may reach the stomach after death.
The experts reached directly contradictory opinions about the cause of Mr. Van Hook’s death. Dr. Spitz testified that the only thing that can be said with a reasonable degree of medical certainty is that Mr. Van Hook did not die instantaneously. He admitted that he could not exclude the possibility that Mr. Van Hook experienced arrhythmia as a result of coronary disease and then drowned. He explained, though, that he could not observe an arrhythmia at an autopsy or other study. Applying his standard for the diagnosis of drowning, he concluded that Mr. Van Hook drowned because the body was recovered from water and he found nothing to support a conclusion of instantaneous death. He stated that, given
Dr. Hirsch testified that Mr. Van Hook died from hypertensive and arteriosclerotic heart disease and not drowning. He admitted that the pathological findings are as consistent with death due to drowning as with instantaneous death due to arrhythmia caused by the heart diseases. Dr. Hirsch testified, though, that the evaluation of the circumstances surrounding Mr. Van Hook’s death was an extremely important aspect of his analysis of Mr. Van Hook’s death. Dr. Hirsch noted that eyewitnesses indicated that Mr. Van Hook appeared to know how to swim. After examining and measuring the pool, Dr. Hirsch concluded that Mr. Van Hook could never have been more than nine feet from safety, either by standing up or grabbing the side of the pool. Dr. Hirsch stated that the fact that none of the lifeguards or persons in or around the pool heard cries for help or observed anything unusual indicates that Mr. Van Hook submerged silently without a struggle or splashing. He stated that a silent submersion is precisely what one would expect if someone died instantaneously from an arrhythmia. Dr. Hirsch concluded that Mr. Van Hook submerged in the pool because he died and that he did not die because he submerged in the pool. He stated that Mr. Van Hook’s submersion was an artifact of the environment in which he was when he died.
As discussed earlier, plaintiff bears the burden of proof in this case. In order to recover on the policies issued by Aetna and Metropolitan, plaintiff must establish by a preponderance of the evidence that Mr. Van Hook’s death was caused solely and exclusively by accidental drowning and was not caused directly, indirectly, wholly or partly, by heart disease. In order to recover on the policies issued by American Motorists, plaintiff must establish by a preponderance of the evidence that accidental drowning was the efficient proximate cause of Mr. Van Hook’s death. In this case, however, the evidence shows that Mr. Van Hook died as a result of either drowning or heart disease. Plaintiff argues that Mr. Van Hook’s death was caused solely and exclusively by drowning. Defendants argue that Mr. Van Hook’s death resulted solely and exclusively from heart disease. The evidence shows that either drowning or the heart disease was sufficient to cause Mr. Van Hook’s death. There is no evidence that drowning and heart disease both contributed to Mr. Van Hook’s death. The evidence shows that Mr. Van Hook’s death resulted from only one or the other of the two possible causes.
The dispositive issue in this case is whether the plaintiff sustained her burden of proving that it is more likely than not that the cause of Mr. Van Hook’s death was accidental drowning. The two expert witnesses agreed that there are no medical tests or findings that can conclusively establish death by drowning. The plaintiff’s expert witness, Dr. Spitz, concluded that Mr. Van Hook died solely as a result of drowning. Applying his standard for a diagnosis of drowning, Dr. Spitz reached this conclusion because the body of Mr. Van Hook was recovered from water and he was unable to find any indication of a cause of death that was instantaneous. Dr. Spitz conceded, however, that Mr. Van Hook had advanced coronary arteriosclerotic hypertensive heart disease. He admitted that the heart disease could result in an arrhythmia, which can cause instantaneous death. Dr. Spitz concluded that there was no indication that an arrhythmia caused instantaneous death because he could not see the arrhythmia at an autopsy or other study of the body. He conceded, however, that an arrhythmia cannot be observed after death because it is an electrical event which does not cause any structural change in the heart. Dr. Spitz did not appear to rely upon the evidence of the circumstances which surrounded Mr. Van Hook’s death in reaching his conclusion. Furthermore, significant parts of Dr. Spitz’s testimony were contradicted by his prior written statements
Defendants’ expert witness, Dr. Hirsch, admitted that he could not exclude the possibility that Mr. Van Hook accidentally drowned. He concluded, however, that the cause of Mr. Van Hook’s death was an arrhythmia resulting from his heart disease. Dr. Hirsch based his conclusion upon the pathological findings of heart disease, a medical study of death due to coronary artery disease, and a consideration of the history and circumstances surrounding Mr. Van Hook’s death.
After careful consideration of the testimony of the expert witnesses and all the other evidence in this case, the Court concludes that plaintiff has failed to sustain her burden of proving by a preponderance of the evidence that Mr. Van Hook accidentally drowned. Although the evidence shows that it is possible that Mr. Van Hook died as a result of drowning, plaintiff has failed to produce sufficient evidence which, when considered with all the other evidence, shows that it is more likely than not that the cause of Mr. Van Hook’s death was accidental drowning. The Court finds that Dr. Hirsch’s testimony is credible evidence that shows that Mr. Van Hook did not accidentally drown. After weighing all the evidence, the Court finds that the medical facts and circumstances of Mr. Van Hook’s death are as consistent with death due to the malfunctioning of Mr. Van Hook’s heart as a result of heart disease as with death due to drowning.
Therefore, for the reasons stated herein, judgment will be granted to the defendants. An appropriate order shall be submitted.
. Jurisdiction in this case is based on diversity of citizenship under 28 U.S.C. § 1332. The parties stipulated that Michigan law applies.
. Dr. Hirsch physically observed the body in preparing his pathological diagnosis. Dr. Spitz reviewed those findings and reviewed slides of sections of Mr. Van Hook’s heart prepared by Dr. Hirsch. Both experts reviewed statements of eyewitnesses. Dr. Hirsch also read the deposition of Monica Clements although Dr. Spitz did not. Dr. Hirsch also examined and measured the pool in which Mr. Van Hook died.
. Dr. Hirsch referred to the chapter on drowning written by Dr. Spitz in the book, Medicoiogical Investigation of Death (2d Ed. W. Spitz and R. Fisher, eds. 1980), which was received into evidence as Plaintiffs Exhibit 1. Dr. Spitz wrote:
Only an evaluation of all possible criteria, especially the findings at autopsy and the circumstances in a particular case, together corroborate the diagnosis [of drowning].
Id. at 360.
. The article is Friedman, et al., Instantaneous and Sudden Deaths — Clinical and Pathological Differentiation in Coronary Artery Disease, 225 J.A.M.A. 1319-28 (1973), which was admitted into evidence as Defendants’ Exhibit 3. Dr. Hirsch testified that the significant points of the study are summarized in the introductory paragraph, which reads in pertinent part:
. .. persons dying instantaneously differed from persons dying suddenly of coronary artery disease in that (1) they rarely experienced acute symptoms or exhibited acute signs before death; (2) more than half died during or immediately after physical exertion; (3) their death appeared to result from a primary arrhythmia; and (4) their hearts rarely showed an acute lesion of any kind and exhibited two old occluded coronary arteries or one old occluded left anterior descending artery.
Id. at 1319.
. In his chapter on drowning in Medicological Investigation of Death (2d Ed. W. Spitz and R. Fisher, eds. 1980), Dr. Spitz wrote:
From a practical standpoint, the presence of water in the lungs and stomach of a drowning victim is of no real significance. Water may well reach these organs after death.
Id. at 353.