Appeal from the District Court of the United States for the Middle District of Pennsylvania; Albert L. Watson, Judge.
Before MARIS, CLARK, and BIDDLE, Circuit Judges.
This decision writes finis to a rather protracted litigation. On April 25, 1933, plaintiff-appellant brought suit in the District Court on a life and disability insurance policy, Record No. 6323, March Term 1937. The transcript above referred to reveals what seem to be no less than seven attempts between that time and December 9, 1936, on the part of plaintiff-appellant to state a cause of action (under the rules of civil procedure adopted by the supreme Court of the United States pursuant to the Act of June 19, 1934, ch. 651, 28 U.S.C.A. §§ 723b, 723c, called a claim for relief, Rule 8(a), 28 U.S.C.A. following section 723c). It was then and is now conceded that the plaintiff failed to keep up his premium payments for the year 1931. He sought then and seeks now to excuse that failure by an assertion of total disability (because of a diseased condition of the heart) coming within the appropriate clause of the policy. In the former proceedings, the question involved was "due proof" of that disability, and in the case at bar the question involved is its very existence. The former proceedings were terminated by an opinion filed September 27, 1937, Peters v. Mutual Life Ins. Co. of New York, 92 F.2d 301, by this court. That opinion reversed the learned district judge's holding that the submission of some form of doctor's certificate must be pleaded as "due proof". Peters v. Mutual Life Ins. Co. of New York, D.C., 17 F.Supp. 246. This opinion affirms the learned district judge's view that he disregarded the law of evidence in originally admitting the only testimony as to disability. It is curious to note, first, plaintiff-appellant after four years first asserted and then withdrew the assertion of an examination for disability by two physicians; second, one of these physicians operated on him for appendicitis prior to the date of the supposed examination and at that time diagnosed a heart lesion (myocarditis) not totally disabling. The action of the learned district judge above referred to came after a jury verdict and, from some references in the record, after a previous trial. The earlier appeal was argued by new and the same counsel now appearing before us.
The plaintiff-insured was at the time of the writing of the policy (1928) only 32 years old. At the time of the claim of disability to excuse lapse he was only 35 years old. He had started his working life as a lineman for a small telephone company, Stroudsburg & Bushkill Telephone Company, and had afterwards received some sort of promotion. We say some sort of promotion because its exact nature appears to be disputed. The plaintiff very naturally accents activity and describes himself as a "trouble-shooter". There is some indication, however, that he was actually manager. In any event, the small branch telephone company was finally absorbed by the Bell System, and his wish to be retained in their employ was not gratified. He has never worked since and interests himself in the management of his six small apartments and in driving one or all of his three cars.
The disability asserted is cardiac neurosis. This disease, according to plaintiff's physician, is functional and not organic. In plain English it is the condition of a person whose nervous system responds unfavorably to the belief (whether true or false) that he has some organic disease of the heart. For some time plaintiff-appellant's expert and the family physician who performed the appendectomy were in agreement about the heart lesion. Later on the latter changed his diagnosis to the one of cardiac neurosis. This ailment, he says, requires abstention from any sort of gainful occupation.
We think the plaintiff-appellant's legal foundations rest upon the sands of a specious fallacy. He propounds a well recognized exception to the hearsay rule as the reason for ignoring an entirely different precept. One of the encyclopedias of law states that exception is this language: " * * * the rule is different where the physician testifying bases his opinion upon statements made during the relationship of physician and patient. According to the great weight of authority, the opinion of a physician is not rendered inadmissible by the fact that it is based wholly or in part on statements made to him by the patient, if those statements are made in the course of professional treatment and with a view to effecting a cure or during an examination made for the purposes of treatment and cure. In such cases statements of an injured or diseased person, while not admissible as evidence of the facts stated, may be testified to by the physician to show the basis of his opinion." 20 American Jurisprudence, p. 729. And see also Boyle v. Philadelphia Rapid Transit co., 286 Pa. 536, 134 A. 446. The exception comes within two (Necessity and Guarantee of Trustworthiness) of Professor Wigmore's sine qua non for dispensing with the hearsay rule, 3 Wigmore on Evidence, 2d Ed., 1923, p. 678, § 1714. Even a rapidly progressing medical science has not yet revealed all that goes on inside of us. The need for help (not testimony) and for falsehood are mutually exclusive. 67 A.L.R. 10; 36 Michigan Law Review 142; 19 Virginia Law Review 416; 3 Idaho Law Journal 82. It does not affirmatively appear that plaintiff consulted the witness Dr. Metzgar for treatment rather than for qualification as an expert. However, that may be inferred from the great number of visits made.
A physician is, of course, an expert on disease. As we have just shown, he is permitted a certain evidential latitude in his testimony about disease. That does not alter, however, his status as an expert. By the same token it has no bearing on a fundamental principle underlying all opinion evidence. That principle stems from the concept of the expert's function and has been stated: " * * * supplementing premises upon which the reasoning of the trier of fact is based with premises obtained from his experiential qualifications thereby endowing the trier of fact with sufficient knowledge to understand the significance of the evidence and to make inferences". Rosenthal, The Development of the Use of Expert Testimony, 2 Law and Contemporary Problems 403. Cf.Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harvard Law Review 40, 50-52.
It is plain that no amount of expertness will enable the jury to accomplish the impossible and draw an inference from an unknown fact. This logical impasse has led to the rule requiring disclosure of the data from which an expert opinion is formed. The text books and law reviews put it this way:
"The expert must give to the jury the facts upon which his opinion is based, so that the court and the jury may determine whether the alleged facts are real and justify his conclusions." Lawson, Exp. & Op. Ev., p. 163.
"If the expert were permitted to express his general views without indicating the facts upon which they are based, he would be usurping the function of the jury for to accept the opinion, the jury must accept as found all the facts underlying it." Steinbrink, The Medical Witness, 6 Brooklyn Law Review 155.
"To admit an expert's unexplained conclusions might in many situations lead to something closely resembling a wager of law." Developments in the Law (Evidence) 46 Harvard Law Review 1138, 1169.
In the case at bar, the plaintiff-appellant's expert balked at basing his opinion on certain specific and enumerated symptoms (see Appendix). He then volunteered to and did base it on the medical history of the case. He was not even asked to give that history and his entire opinion becomes therefore clearly inadmissible.
We believe that a more logical argument might have been founded on Professor Wigmore's dissent from the rigid views of a majority of his legal ...