                      UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT

                         ________________________

                               No. 99-30309
                         ________________________

MISTY HECK,
                                                          Plaintiff-Appellant,

versus

TIME INSURANCE COMPANY,
                                                            Defendant-Appellee.

       _____________________________________________________

            Appeal from the United States District Court
                for the Middle District of Louisiana
                          (95-CV-629-A-M1)
       _____________________________________________________
                            May 16, 2000

Before WIENER, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

      Plaintiff-Appellant       Misty    Heck     appeals      from      the    adverse

judgment of     the   district    court,       grounded   in    a     jury     verdict,

agreeing with the contention of Defendant-Appellee Time Insurance

Company (“Time”) that Heck’s infant daughter, Sommer, had a pre-

existing    medical   condition       within    the    meaning      of    the   health

insurance    policy    issued    by    Time    (“the    Policy”)         that   voided

coverage.      We perceive no reversible error in the court’s jury

instructions and interrogatories —— to which neither party timely

objected —— and we agree with the district court’s conclusion that


  *
    Pursuant to 5TH CIR. Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. Rule 47.5.4.

                                        1
sufficient evidence was adduced on which a reasonable jury could

find that, prior to the effective date of the Policy —— 12:01 a.m.,

December 23, 1994 —— Sommer exhibited “signs or symptoms [that]

should have caused an ordinarily prudent person to seek diagnosis

or treatment,” thereby making her “signs or symptoms... significant

enough to establish manifestation” of her disease before the Policy

was effective and thereby constitute a pre-existing condition.           We

therefore affirm.

     Time has never intimated, much less asserted, that Heck or any

other family member acted in bad faith in obtaining insurance from

Time in such close proximity to the diagnosis of little Sommer’s

fatal neuroblastoma. Rather, Time has maintained at all times that

observations    of   objective   physical   conditions   of   the   child’s

abdomen by a family member and a caregiver were such that a layman

of ordinary prudence would have been prompted to seek diagnosis or

treatment.     This is not to be confused with prompting a prudent

layman to suspect that Sommer was suffering from neuroblastoma, or

from some other form of cancer, or for that matter from any

specific disease or adverse medical condition whatsoever; only that

her symptoms were such that a prudent layman’s concern should have

been piqued sufficiently to prompt the seeking of professional

diagnosis or treatment for whatever malady might be producing these

symptoms.

     In excluding coverage of a pre-existing sickness or injury,

the Policy defines sickness as “[a]n illness, disease or condition

which first manifests itself while this policy is in force.”            The


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Policy goes on to state expressly what that definition implies,

i.e., that pre-existing conditions are not covered, and to define

a pre-existing condition as:

            [a] sickness,     injury,         disease   or   physical
            condition:

            1. For which the Covered Person received
            medical treatment or advice from a Physician
            within the five year period immediately
            preceding the Effective Date of Coverage;

            2. which produced signs or symptoms within the
            five year period immediately preceding the
            Effective Date of Coverage.

The   policy   then    establishes       “manifestation      or   onset”   as   the

threshold for signs and symptoms to be cognizable:

            The   signs  or   symptoms  must   have  been
            significant enough to establish manifestation
            or onset....

And   the   policy    established    a    two-part,     disjunctive     test    for

determining if signs or symptoms are sufficiently significant to

constitute manifestation or onset:

            a. The signs or symptoms would have allowed
            one learned in medicine to make a diagnosis of
            the disorder; or

            b. The signs or symptoms should have caused an
            ordinarily prudent person to seek diagnosis or
            treatment.

      Time insists that signs or symptoms of Sommer’s sickness or

disease for which it is denying coverage —— her neuroblastoma ——

were sufficient to manifest her condition before the December 23,

1994 effective date of the Policy.            On appeal, Time does not stress

that these signs or symptoms were significant enough, prior to

coverage, to allow “one learned in medicine” to diagnose Sommer’s


                                          3
cancer.   Rather, Time supports the jury’s determination that those

signs and symptoms were sufficiently significant to establish

manifestation   or   onset   under   the   second,   “ordinarily   prudent

person” prong of the disjunctive test contained in the Policy.

Time observes that, unlike the first, “one learned in medicine”

prong, this second prong is not disease-specific —— and properly

so.    Under this prong, a layman need only observe an abnormal

condition that should prompt him to seek diagnosis or treatment; he

need not know or even have any clue as to the identity of the

sickness or illness that is causing those signs or symptoms.

      Although an element of confusion might have been generated by

Sommer’s temporally coincident symptoms of an ear infection and her

pre-coverage examination and treatment for that condition during

the period preceding her diagnosis of neuroblastoma, we find no

indication in the record that the jury was confused or misled by

the simultaneous presence of these unrelated illnesses.            We are

satisfied that the jury focused on the key question of this appeal,

whether the evidence of the palpable and visible condition of

Sommer’s abdomen as observed by laymen prior to December 23, 1994,

was such that the hypothetical “ordinarily prudent person” —— being

neither an hysterical, overreacting person nor an overly blase or

unduly indifferent person —— would be prompted to have that child

examined by a health care professional for whatever might be

causing those signs or symptoms.

      The following evidence of lay observations of Sommer’s “signs

or symptoms” was presented to the jury:        (1) At a Christmas party


                                     4
on December 10, 1994, Heck’s stepmother noticed that Sommer’s

“little tummy was hard,” mentioned it to her husband (Heck’s

father), and suggested that the child’s stomach be checked; but

also testified that she thought Sommer “might have gas” and did not

think it was “that big of a deal”; (2) on December 21st, Sommer’s

regular caregiver at her childcare center noticed that Sommer’s

abdomen was “a little swollen” and hard, but speculated that the

child might be constipated; (3) the next day, that same caregiver

observed that Sommer’s abdomen was still swollen and hard but did

not appear to be getting larger, observing that the child otherwise

appeared to be fine.      The jury also heard testimony in mitigation

of the sufficiency of such signs or symptoms to prompt the seeking

of medical attention:        (1) Neither Heck’s stepmother nor the

daycare   worker   were    sufficiently   alarmed   to   relate   their

observations to Sommer’s parents; (2) the daycare worker testified

that Sommer’s usual pattern of bowel movements was such that the

worker assumed the child’s hard and swollen abdomen was symptomatic

of constipation; and (3) the physician who eventually diagnosed

Sommer’s malignancy stated that “a swollen belly would be an

appropriate presentation” of a neuroblastoma in the abdomen, but

added that “the common swelling in a baby’s belly is one in which

they are full of poo rather than full of tumor.”1


  1
     The jury also heard evidence that on December 18, 1994 —— a
week after the stepgrandmother noticed the hard tummy and suggested
that it be checked and three or four days before the daycare worker
noticed that Sommer’s abdomen was swollen and hard —— Sommer was
observed by her parents to have a high fever and repeatedly pull at
her ears, prompting Heck to seek diagnosis and treatment.

                                    5
     At different stages of the two day trial, each party moved for

a judgment as a matter of law and, within ten days following the

entry of judgment, Heck renewed her motion and, in the alternative,

requested a new trial. The district court denied all these motions

and filed a written opinion in which it concluded that the jury was

entitled to infer from the evidence that Sommer’s objective signs

and symptoms of abdominal problems were sufficiently significant to

cause an ordinarily prudent person to seek professional attention.

We agree with the trial court’s assessment.

     This appeal presents a quintessential question of fact for

jury determination.   The coverage denied by Time was that for

medical costs and expenses arising from or connected with Sommer’s

abdominal neuroblastoma.   The pre-December 23rd signs and symptoms

relied on by Time are those directly related to Sommer’s abdomen,

and are the ones considered by the jury.   This presented the jury

with a straightforward choice: Either (1) agree with Heck that the

tight and swollen abdomen observed by her stepmother on December 10

and by the daycare worker on December 21st and 22nd was the kind of


Antibiotics were prescribed by phone and Sommer was seen by the
family physician during his rounds at the hospital the next day, at
which time he confirmed the diagnosis of ear infection from which,
in the opinion of her parents, she recovered after taking the
antibiotics.   Time does not base its denial of coverage on the
symptoms of ear infection and, as noted above, nothing in the
record suggests that the jury was confused by that ear infection
evidence or considered its signs or symptoms in responding
affirmatively to jury interrogatory number 3, “[d]o you find that
Sommer had signs or symptoms prior to December 23, 1994, which
should have caused an ordinary person to seek diagnosis or
treatment?” The ear incident came and went routinely during the
hiatus of several days between December 10 and 21, while the
abdomen situation was quiescent, at least as far as the record of
this case is concerned.

                                 6
condition that persons who care for infants encounter routinely and

not the kind that should prompt one to resort to healthcare

professionals for diagnosis and treatment, or (2) agree with Time

that an ordinarily prudent person should indeed be prompted to seek

diagnosis or treatment on observing such signs or symptoms in a

child.   The jury deliberated and, in the end, agreed with Time.

     If presented with the same factual determination, we might not

reach the same conclusion as did the jury.       As the evidence of the

signs and symptoms presented to the jury was more than a mere

scintilla,   however,   we   are   prohibited   from   substituting   our

opinion, based on a cold record, for that of the jurors who heard

the testimony and observed the witnesses —— as did the trial judge,

who declined Heck’s invitation, both before and after verdict, to

grant her motion for a judgment as a matter of law or a new trial.

     Finding no reversible error in the conduct of the jury trial

of this case or in the rulings of the district court, the judgment

of that court is, in all respects,

AFFIRMED.




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