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Weyman H. Cox Ii v. Paul Revere Life Insurance

June 8, 2011

WEYMAN H. COX II,
PLAINTIFF,
v.
PAUL REVERE LIFE INSURANCE
COMPANY, UNUMPROVIDENT CORPORATION, AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER RE: MOTION FOR A NEW TRIAL

This case was tried to a jury verdict on January 11-14 of this year. The jury found for Paul Revere. Specifically, it found that Paul Revere did not breach a disability insurance contract with Mr. Cox by attributing his disability - failing eyesight - to an illness rather than an accident, which entitled Mr. Cox to a smaller payout under the insurance contract. On February 25, 2011, Mr. Cox filed a motion for a new trial. The basis for the motion is Mr. Cox's contention that the Court provided an erroneous answer to a question from the jury after it began deliberating. The question went to the critical issue in the case, and the Court gave it substantial consideration and consulted extensively with counsel before answering it.

The jury's question was whether two statements of Mr. Cox's expert, Dr. Paul Tornambe, on direct examination were admitted into evidence. The first statement was that tears in the vitreous caused by trauma are larger than tears that occur naturally. The second statement was that Mr. Cox had a large tear in the vitreous of his left eye. Dr. Tornambe made the first statement in the context of a general tutorial about the physiology of the eye, and at the time counsel for Paul Revere did not object. He made the second statement when, later in his testimony, he was asked if he'd formed an opinion as to the cause of the retinal detachment in Mr. Cox's left eye. This time, counsel for Paul Revere did object to Dr. Tornambe's statement and the Court sustained the objection. After a lengthy colloquy with counsel for Mr. Cox and Paul Revere, the Court answered the jury's question as to both statements "No."

The Court heard oral argument on the motion for a new trial on May 31, 2011 and denied it. It explained the bases for its ruling at the hearing, and it issues this Order to confirm the ruling and the rationale for it.

I. Dr. Tornambe's Stricken Testimony

On direct examination, counsel for Mr. Cox asked Dr. Tornambe if he had an opinion as to the cause of the retinal detachment in Mr. Cox's left eye. Dr. Tornambe responded, "The snowmobile accident." (Jan. 12 Tr. at 32:6--8.) Counsel then asked what the basis for that opinion was. Dr. Tornambe responded,

I think there are three major areas.

Number one is the close relationship of the trauma and the development of the floaters and the retinal detachment. If you just look at the odds, the incidence of retinal detachment, as I said, five to ten per hundred thousand. So the chances of that happening serendipitously on the same day or the day after a trauma which does involve the head and say that that's just serendipity, it just happened, doesn't make - isn't logical to me.

The second is the finding of the large posterior tear. The tear that he had . . . (Id. at 32:9--20.) At this point counsel for Paul Revere objected on the ground that Dr. Tornambe did not offer this basis for his opinion in his deposition. Indeed, when Dr. Tornambe was asked during his deposition why he concluded that Mr. Cox's retinal detachment was caused by a snowmobiling spill as opposed to some other, natural cause, he responded, "Just the temporal relationship." (Tornambe Dep. at 42:6--10 (emphasis added).) He also indicated that none of the physical attributes of a traumatic retinal detachment - which would surely include a large posterior tear - were noted in the report of the first ophthalmologist to treat Mr. Cox. (Id. at 40:23--41:13.)

In addition, neither of Dr. Tornambe's expert reports singled out the size of Mr. Cox's vitreous tear as a basis for his conclusion that his retinal detachment was caused by trauma, at least in clear and specific terms. His first report, prepared on August 12, 2009, merely noted, "The distortion OS is secondary to the detachment sustained within a few days of the snow mobile trip and to a high degree of medical probability, was caused by the falls taken during the snowmobile ride." (Kojima Decl., Ex. C at C2.) His second report, prepared after he was deposed, went into slightly more detail:

After reviewing these documents I have come to the conclusion that beyond reasonable medical probability, the snowmobile accident was the major contributing factor for the retinal detachment Mr. Cox sustained in the left eye. I base this opinion on a thirty-two year experience treating thousands of patients with retinal detachments, the type of injury sustained and the proximity of the injury to the development of the retinal detachment . . . .

The 'go and stop' forces sustained during this snowmobile accident are sufficient to result in a tear and a retinal detachment. The symptoms his wife vividly relates on the car ride home the day of the accident and on the plane ride home the day following the accident are consistent with a torn retina and an early retinal detachment. The proximity of the accident and his symptoms make it to a high degree of medical probability that the accident played a direct role in the development of the retinal detachment. (Kojima Decl., Ex. D at D1--2.)

After hearing Paul Revere's objection to Dr. Tornambe's testimony, the Court considered Dr. Tornambe's deposition and his two reports and sustained the objection.*fn1

(Jan 12 Tr. at 35:7--9.)

There is no getting around the fact that when Dr. Tornambe was asked during his deposition why he concluded Mr. Cox's retinal tear was caused by trauma, he said, "Just the temporal relationship." His first expert report made no mention of the size of the vitreous tear, and his second report made only a cryptic reference to "the type of injury sustained" as a basis for his conclusion that Mr. Cox's snowmobiling spills caused his retinal detachment.*fn2 This could mean anything, really. Dr. Tornambe testified, for example, that a snowmobile spill, or even sudden stops on a snowmobile, can cause a retinal tear, without any reference whatsoever to the nature of that tear. (Jan. 12 Tr. at 36:14--25.) By saying "the type of ...


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