Filed: Jul. 17, 2020
Latest Update: Jul. 17, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-2570 _ SENECA INSURANCE COMPANY, a/s/o WILD BLUE MANAGEMENT LP, Appellant v. MARK BEAL, d/b/a MARK’S MAINTENANCE AND REPAIR v. LARRY D. JEFFRIES, d/b/a L&D CONTRACTING; GENE NEWHAMS, d/b/a GN ELECTRICAL; CHRIS SOKOL; WILD BLUE MANAGEMENT LP _ Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2:13-cv-01737) District Judge: Honorable Robert C. Mitchell _ Submitted under Thir
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-2570 _ SENECA INSURANCE COMPANY, a/s/o WILD BLUE MANAGEMENT LP, Appellant v. MARK BEAL, d/b/a MARK’S MAINTENANCE AND REPAIR v. LARRY D. JEFFRIES, d/b/a L&D CONTRACTING; GENE NEWHAMS, d/b/a GN ELECTRICAL; CHRIS SOKOL; WILD BLUE MANAGEMENT LP _ Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2:13-cv-01737) District Judge: Honorable Robert C. Mitchell _ Submitted under Third..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 18-2570
________________
SENECA INSURANCE COMPANY, a/s/o WILD BLUE MANAGEMENT LP,
Appellant
v.
MARK BEAL, d/b/a MARK’S MAINTENANCE AND REPAIR
v.
LARRY D. JEFFRIES, d/b/a L&D CONTRACTING;
GENE NEWHAMS, d/b/a GN ELECTRICAL;
CHRIS SOKOL; WILD BLUE MANAGEMENT LP
________________
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2:13-cv-01737)
District Judge: Honorable Robert C. Mitchell
______________
Submitted under Third Circuit L.A.R. 34.1(a)
December 9, 2019
Before: RESTREPO, ROTH, FISHER, Circuit Judges
(Opinion filed: July 17, 2020)
________________
OPINION
________________
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
RESTREPO, Circuit Judge
Appellant Seneca Insurance Co. (“Seneca”), as Subrogee of Wild Blue
Management LLP, challenges the District Court’s denial of Seneca’s motion in limine,
which requested the disqualification of defendant’s expert Ralph Dolence and the denial
of its post-trial motion for a new trial. For the reasons that follow we affirm.
I.
This appeal arises out of a claim of negligence against Mark Beal and Mark’s
Maintenance and Repair (collectively, “Beal”) after a fire on December 17, 2012 that
caused substantial and costly damage to the Natrona Heights Shopping Plaza owned by
Wild Blue Management, Inc. in Natrona Heights, Pennsylvania. As its insurer, Seneca
paid Wild Blue Management’s losses resulting from the fire. The dispute at trial was
over the origin and cause of the fire, whether Beal acted negligently while removing a
neon sign, and whether those actions or omissions were a factual cause of the fire. At
trial, plaintiff employed three experts: Dennis Brew, who specialized in installing and
removing neon signs; Gerald Kufta, a private investigator specializing in fires; and
Samuel Sero, a forensic engineer. At issue in this appeal is the testimony of defendant's
only expert witness, Ralph Dolence (“Dolence”), a career fire fighter, fire officer,
licensed master electrician, and forensic expert.
On March 28, 2018, the jury reached a verdict that Beal was negligent when he
removed a neon sign from the façade of a vacant storefront in the plaza, but that Beal's
actions or omissions were not the factual cause of the fire. Because the jury found that
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Beal’s actions or omissions were not the factual cause of the fire, it did not determine
what percentage of negligence should be attributed to Beal. On April 25, 2018, Seneca
filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new
trial. The District Court denied Seneca’s motion on June 14, 2018. Seneca timely
appealed.
The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction
under 28 U.S.C. § 1291.
II.
A. Motion in Limine
Appellant claims the District Court abused its discretion when it denied Seneca's
motion in limine, asserting that Dolence’s expert witness testimony was speculative and
lacked foundation. We review the District Court's decision for abuse of discretion, and
will not disturb its decision unless “no reasonable person would adopt the district court’s
view.” Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002). To
constitute an abuse of discretion, the District Court’s decision must have been “arbitrary,
fanciful, or clearly unreasonable.”
Id.
Under Fed. R. Evid. 702, the trial judge serves as a gatekeeper to determine
whether the witness’ methodology is relevant and reliable. Kannankeril v. Terminix Int’l,
Inc.,
128 F.3d 802, 806 (3d Cir. 1997). “[I]f the methodology and reasoning are
sufficiently reliable to allow the fact finder to consider the expert's opinion, it is that trier
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of fact that must assess the expert's conclusions.” In re TMI Litig., 193 F.3d 613, 665 (3d
Cir. 1999).
Whether or not expert testimony is admissible “focuses on principles and
methodology and not the conclusions they generate.” Kannankeril, 128 F.3d at 807.
Dolence was qualified as an expert witness under Rule 702 because of his knowledge
from years of professional experience, which included over 30 years as a fire investigator
and 40 years as a licensed electrician. At the time of his testimony, Dolence, a qualified
forensic expert in 30 states, had served on arson task forces, investigated over 12,000
fires, and taught hundreds of classes on fire causes and origin investigations.
Dolence’s testimony was based on, among other things, his personal observations
and review of materials from the fire investigation. The foundation of his opinion was an
examination of several hundred photographs, videos, and other documentation provided
by the township, fire marshal, and individuals who were at the scene of the fire. He also
analyzed depositions, documents, and reports provided by appellant’s experts and
attended a joint evidence examination with Gerald Kufta and several other experts.
Dolence based his opinion on standards and guidelines of the National Fire Protection
Association (“NFPA”). Using his expert knowledge, Dolence examined the evidence and
facts provided to him and compared it to the industry standard, and ultimately testified
that the cause of the fire was “undetermined” because the fire investigation was improper
and other causes were not ruled out.
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Upon review of Dolence’s report and testimony, there is no “definite and firm
conviction that the [District Court] committed a clear error of judgment in the conclusion
it reached upon a weighing of the relevant factors.” Oddi v. Ford Motor Co., 234 F.3d
136, 146 (3d Cir. 2000). For these reasons, the District Court did not abuse its discretion
in denying Seneca’s motion in limine.
B. Motion for a new trial
Seneca also appeals the District Court’s denial of its post-trial motion for a new
trial. Seneca asserts that it is entitled to a new trial because Dolence's testimony was
improper, as it caused jury confusion regarding the legal standard for proving factual
causation of the fire. We review the District Court’s decision for abuse of discretion.
Leonard v. Stemtech Int'l Inc., 834 F.3d 376, 386 (3d Cir. 2016).
Seneca argues that Dolence’s testimony implied that the standard of proof was to
rule out every other cause of the fire and that he testified to hypothetical causes of the
fire. As the District Court properly noted in its Memorandum and Order, Dolence’s
testimony about the flaws in the fire investigation was permissible. Dolence specifically
testified about the flaws in the methodology and parts of the investigation that were, in
his opinion, improper based upon NFPA 1033, which outlines the proper ways
investigators must collect and preserve evidence.
The record reflects that Dolence did not impose a burden of proof or outline a
legal standard as Seneca alleges. Rather, he described the methods of fire investigation
under NFPA and the methods he knew should be employed based on his experience of
5
examining over 12,000 fires over the course of his 30-year career as a fire investigator.
Although Dolence’s testimony may have contradicted the opinions of Seneca’s experts,
as the District Court properly noted, Seneca had the opportunity to attack the credibility
of Dolence’s testimony through cross examination and did so at trial.
As part of its argument, Seneca points to an “inconsistent” verdict, because the
jury found Beal to be negligent but that his negligence was not a factual cause of the fire.1
The two questions answered by the jury were: (1) “Was the defendant, Mark Beal doing
business as Mark’s Maintenance and Repair, negligent?”; and (2) “If you answered
Question No. 1 ‘Yes,’ was the negligence of Mark Beal doing business as Mark’s
Maintenance and Repair a factual cause of any harm to the plaintiff?” App. at 0002 –
0003.
These are two separate questions, designed to determine whether or not Beal was
liable. For Beal to be found liable for the damage of the fire, the jury needed to answer
“Yes” to Question 2. Two distinct answers to these separate questions does not
demonstrate that Dolence mislead the jury through his testimony. Rather, this simply
indicates that the jury, weighing the evidence presented by both parties, deliberated and
concluded that Beal’s actions or omissions were not the factual cause of the fire.
1
Seneca does not dispute that it waived any challenge to the verdict on appeal, but rather
argues that what it claims to be an “inconsistent” verdict is evidence that Seneca was
prejudiced by Dolence’s testimony.
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For the reasons set forth above, we affirm the District Court’s decision to deny
Seneca’s motion for Judgment Notwithstanding the Verdict or in the Alternative for a
New Trial.
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