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March 27, 1975

John F. BUCHALSKI, Plaintiff,

Beeks, District Judge.

The opinion of the court was delivered by: BEEKS

This case presents the question of whether plaintiff may recover as damages a full measure of lost future wages when, in the interim between a disabling injury caused by fault of the defendant, and trial of the case, he suffers an independently caused physiological ailment the disabling effects of which parallel those of the first injury.

 Plaintiff is a 53-year old longshoreman employed by third party defendant. In January 1972 he sustained a back injury while working aboard the HONG KONG HONOUR, a vessel owned by defendant. Plaintiff brought this action against defendant, alleging that his injuries were the result of defendant's negligence and the unseaworthiness of the vessel. *fn1" Defendant thereupon instituted a third party action seeking indemnity from plaintiff's employer. *fn2"

 The medical testimony adduced at trial and the medical reports subsequently submitted by both parties indicate that as a result of his accident, plaintiff suffers from a permanent and partially disabling injury to his lower back, the accident having exacerbated a pre-existing weakness of the lower back which had resulted from a prior injury. The evidence, however, supports the conclusion that the pre-existing condition had stabilized at a nondisabling level and could have been expected to remain dormant but for the subsequent injury: defendant is thus liable for the effects of the injury, notwithstanding the fact that those effects might have been less severe but for plaintiff's pre-existing condition. It is a well-established precept of tort law that a tortfeasor takes his victim as he finds him, and must bear liability for the manner and degree in which his fault manifests itself on the individual physiology of the victim. *fn3"

 Plaintiff's injury has caused him to experience low back pain, pain that radiates to his thigh and to his testicles, difficulty sleeping, a loss of libido and general malaise, all of which has resulted in his being restricted to light duty as a longshoreman.

 Plaintiff seeks damages, past and future, for medical expenses, pain and suffering, and lost wages. The record before the Court, including adequate documentation of plaintiff's physical injuries and a comprehensive compilation of the past earnings of plaintiff and three comparable fellow workers, provides the Court with a sufficient basis for determining the measure of damages. What would otherwise be a straightforward determination is, however, complicated by the fact that on August 30, 1974, plaintiff suffered a mild heart attack. This raises the question of what effect, if any, plaintiff's heart ailment should have on the amount of damages for which defendant is liable.

 There is no suggestion that the heart attack was in any way related to the back injury, or otherwise attributable to any acts of defendant. It arose from independent and innocent causes. As a result of the heart attack, plaintiff was hospitalized for the first week of September 1974, thereafter convalescing at home until he returned to work on December 9, 1974. Plaintiff's expert on internal medicine and his treating physician concur that plaintiff has made an excellent recovery from the heart attack and should enjoy a normal work life expectancy. Both doctors agree that plaintiff is fit to return to longshoring, as indeed he has, with the proviso that he refrain from heavy exertion.

 Defendant's internist, on the other hand, reports that plaintiff's heart disease is not totally stabilized, and that he would expect plaintiff's symptoms to continue and likely increase. The internist also concludes that the heart problem will prevent plaintiff from "permanently returning to longshoreman type work."

 There is no evidence that plaintiff has suffered recurring heart problems since his initial illness on August 30, 1974. His recovery is supported by the fact that he has returned to work, and has been able to assume a work load comparable to that which he bore subsequent to his back injury but prior to his heart attack. Without doubt, there is much "longshoreman type work" for which plaintiff is unfit: Nonetheless, he has been found fit for light duty, and has in fact returned to work in that limited capacity.

 Accordingly, I am persuaded by the medical evidence before me that, as a result of his heart ailment, plaintiff suffers only a partial disability, and that the heart problem does not shorten his work life expectancy. I also find that the disability arising out of plaintiff's heart problem parallels that resulting from his back injury. Specifically, plaintiff's heart problem does not cause him any disability beyond that already sustained as a result of his back injury. It therefore might properly be said that the present disability is the result of two separate and independent causes, either of which, operating singly, would have achieved the identical practical result: that of rendering plaintiff fit only for light duty as a longshoreman.

 It is not contended by either party that the heart ailment affects defendant's liability for damages with regard to past or future pain and suffering or medical expenses, or with regard to plaintiff's wage loss prior to the date of his heart attack. It is, however, the contention of defendant that its liability for lost wages must not extend beyond the date of the heart attack.

 Defendant argues as follows: There exists a situation in which two successive and independent injuries have been sustained, each of which produced, or would have produced, a similar impairment of earning capacity. Defendant may be held liable only for such damages as may be proximately related to the first injury. Such damages extend only up to the point of the second injury, at which time defendant's acts were superseded or supplanted by the heart attack as a cause of disability.

 Defendant has not cited any direct authority in support of its position. Rather, it asserts the applicability of legal principles that are, in my view, properly cognizable only under ...

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