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Depass v. United States

decided: November 16, 1983.

JAMES DEPASS, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Southern District of Illinois. No. 80 C 3081 -- James L. Foreman, Chief Judge.

Posner and Flaum, Circuit Judges, and Grant, Senior District Judge.*fn* Posner, Circuit Judge, dissenting.

Author: Flaum

FLAUM, Circuit Judge.

This appeal arises out of the denial of damages to plaintiff James DePass for alleged increased risk of cardiovascular disease and loss of life expectancy. The district court, in a bench trial, found that DePass had not proved the injury by a preponderance of the evidence. This appeal requires us to determine whether the district court was "clearly erroneous" in its finding. Fed. R. Civ. P. 52(a). For the reasons set out below, we affirm the district court.

I

On December 9, 1978, DePass was struck by a car driven by an employee of the defendant United States. DePass sustained severe injuries, including a traumatic amputation of his left leg below the knee. DePass brought suit under the Federal Tort Claims Act, 28 U.S.C. ยงยง 2671-2680. The United States admitted liability, and the case was tried as to damages only.

At trial, DePass introduced evidence as to the nature and extent of his injuries, and as to past and future pain and suffering. DePass's witnesses included Dr. Jerome D. Cohen, a medical doctor.*fn1 Dr. Cohen testified that he had examined DePass and found that DePass had had a traumatic amputation of the left leg just below the knee. Dr. Cohen then testified that he had read an article, "Traumatic Limb Amputation and the Subsequent Mortality from Cardiovascular Disease and Other Causes," published in volume 33 of the Journal of Chronic Diseases, by Zdenek Hrubec and Richard Ryder ("the Hrubec and Ryder study") (Pl. Ex. 10).*fn2 This article involved a study of 3,890 Americans who had suffered traumatic limb amputations during World War II. The study established a statistical connection between traumatic limb amputations and future cardiovascular problems and decreased life expectancy.

Dr. Cohen testified that DePass fits within the class of persons who had sustained a traumatic amputation of a limb. He testified that, based on his own experience, his examination of DePass, and his analysis of the Hrubec and Ryder study, because DePass is a traumatic amputee he has a greater risk of cardiovascular problems and decreased life expectancy. At the conclusion of Dr. Cohen's testimony, the trial court questioned him as follows:

The Court: Is it your testimony that based on your examination of this plaintiff, Mr. DePass, plus your knowledge in the field of cardiovascular disease and including your analysis and a reading of the article which is Exhibit 10, is your opinion that he, because he is the amputee that he is on the left leg below the knee, that he has a greater risk for developing cardiovascular disease in the future and also a greater risk for shorter mortality, shorter longevity? Is that what you're saying, that he is a risk for that?

[Dr. Cohen]: Yes, that's correct.

The Court: And you're not saying that he will develop it or that he will live shorter, but he is a greater risk for both of those?

[Dr. Cohen]: That's correct.

(Tr. at 289-90).

On cross-examination, Dr. Cohen testified to the existence of several other studies on the relationship between traumatic limb amputation and decreased life expectancy. In particular, he testified as to a 1954 English study of 27,000 amputees that showed no statistical connection between amputation and decreased life expectancy. Several studies conducted on a smaller scale also failed to show a connection. One study, done in Finland, found a statistical connection. He testified that he had not personally reviewed any of the other studies. Dr. Cohen testified that no one knows if in fact the Hrubec and Ryder study is correct. Dr. Cohen then read from the study, "The reasons for the statistically significant relationship demonstrated between limb ...


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