D.C. Civil Action No. 69-156. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Aldisert, Gibbons and Rosenn, Circuit Judges.
This is an appeal from an order of the district court denying the motion of defendant Crawford Shipping Company for a new trial on damages only. The original plaintiff, Oscar Foster, brought an action to recover damages for his personal injuries suffered in an accident while, as a longshoreman, he was unloading defendant's vessel. On September 28, 1972, four days before the trial began, his attorneys filed a motion seeking to have Mayme Foster, the appellee, appointed guardian ad litem for Oscar Foster. On September 29, 1972 the court entered an order adjudicating Foster an incompetent. Thus he could not testify at the trial, and did not appear in court. The court proceeded first with the trial of liability issues and at the end of that aspect of the case entered a directed verdict that the unseaworthiness of defendant's vessel caused the accident in which Oscar Foster fell into a cargo hold. The liability determination is not challenged on this appeal. The trial then proceeded on the issue of damages.
It was plaintiff's theory that Foster was suffering from severe schizophrenia, and that his fall into the cargo hold on defendant's vessel was a "triggering mechanism" which resulted in that psychotic condition. In support of that theory the plaintiff offered the testimony of Dr. Harold Dillon, Chief of Psychiatry at the University of Pennsylvania Division of the Philadelphia General Hospital, who had treated Oscar Foster between January 22, 1969 and the date of the trial, and who in answer to a hypothetical question expressed the opinion based on reasonable medical certainty that the fall was a triggering mechanism for Foster's psychiatric condition. There was contrary expert opinion testimony as to the connection between the fall and the schizophrenia by Dr. Joseph Robinson, an Assistant Professor of Psychiatry at Hahnemann Medical College, who examined Foster on behalf of the defendant. Dr. Dillon's testimony as to prognosis suggested that there was progressive deterioration which would continue, that Foster would never be gainfully employed, that he would need hospitalization for at least one month a year for the rest of his life and that he would require monthly visits to a psychiatrist. As might be expected, Dr. Robinson's testimony as to prognosis was considerably more optimistic, suggesting the likelihood of periodic remission. There was evidence establishing a life expectancy of 37 years and a work expectancy of 30 years. The amount of damages was clearly related to Foster's present condition and prognosis. The verdict is for $500,000.
On the evening of the second day of the trial an attorney for the plaintiff, without notice to the court or to opposing counsel, went to Oscar Foster's home with a videotape crew which recorded a two-minute segment showing the attorney interrogating Foster. We have viewed the segment of videotape. It shows Foster to be in an apparently uncommunicative and partially catatonic state, responding to interrogation with grunts and growls. The tape discloses none of the circumstances surrounding its preparation and discloses nothing about Foster's state immediately before or after the intrusion by the video crew. The defendant objected to showing the tape to the jury:
" MR. KELLY: Your Honor, I would object to the admission of that tape. I have just learned about it just now. It's highly prejudicial to the defense inasmuch as we are not familiar with the circumstances surrounding the taking of the tape.
We were not afforded an opportunity to be there, which we could have been. Therefore, under all those circumstances, and the late appearance of this tape, although taken last night, the defense objects to its admission.
THE COURT: What is the purpose that you are introducing this?
MR. BARISH: I am introducing this strictly to be illustrative of Dr. Dillon's testimony. It has no greater purpose than a chart that a doctor would use to talk about in his testimony. It has no greater purpose than a schedule to know what a doctor would use to explain a broken bone, and Dr. Dillon was to state what this gentleman is like, and this is illustrative of his present condition.
MR. KELLY: Your Honor, the difference between a chart -- a skeleton and that tape is obvious and apparent. That tape is inflammatory to the jury.
Dr. Dillon is in a position just as any doctor is in any case to testify from his notes, through his medical expertise as to the condition of Mr. Foster.
If the only purpose for that tape is illustration, I consider that the prejudicial fact was involved in the jury seeing that tape are -- they far ...