Filed: Jul. 16, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2072 PITT OHIO EXPRESS, LLC; THOMAS TROXEL MILLER, Plaintiffs - Appellees, v. PAT SALMON & SONS, INC.; JOHN JOSEPH BANIK, Defendants - Appellants, and C. BEAN TRANSPORT, INC.; WILLIAM MICHAEL FEWELL, Defendants. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Michael F. Urbanski, District Judge. (5:11-cv-00059-MFU) Submitted: June 5, 2013 Decided: July 16, 2013 Before WILK
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2072 PITT OHIO EXPRESS, LLC; THOMAS TROXEL MILLER, Plaintiffs - Appellees, v. PAT SALMON & SONS, INC.; JOHN JOSEPH BANIK, Defendants - Appellants, and C. BEAN TRANSPORT, INC.; WILLIAM MICHAEL FEWELL, Defendants. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Michael F. Urbanski, District Judge. (5:11-cv-00059-MFU) Submitted: June 5, 2013 Decided: July 16, 2013 Before WILKI..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2072
PITT OHIO EXPRESS, LLC; THOMAS TROXEL MILLER,
Plaintiffs - Appellees,
v.
PAT SALMON & SONS, INC.; JOHN JOSEPH BANIK,
Defendants - Appellants,
and
C. BEAN TRANSPORT, INC.; WILLIAM MICHAEL FEWELL,
Defendants.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Michael F. Urbanski,
District Judge. (5:11-cv-00059-MFU)
Submitted: June 5, 2013 Decided: July 16, 2013
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph Francis Cunningham, James Vincent Lopez, Joshua Matthew
Hoffman, CUNNINGHAM & ASSOCIATES, PC, Arlington, Virginia, for
Appellants. David W. Hearn, Sarah Warren S. Beverly, SANDS
ANDERSON, PC, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
This appeal presents a challenge to the district court’s
refusal to overturn a jury verdict or grant a new trial in a
case resulting from an interstate highway collision. Appellants
also claim that the district court abused its discretion by
excluding expert testimony and excluding certain evidence as
unfairly prejudicial. For the reasons that follow, we affirm
the judgment.
I.
This case arises from a series of collisions involving
three commercial trucks and a passenger vehicle along Interstate
81 in Shenandoah County, Virginia. In response to foggy
conditions, William Michael Fewell slowed the first commercial
truck, which was owned by his employer C. Bean Transport Inc.
(“C. Bean”). Joseph Banik, driving the second truck, which was
owned by his employer, Pat Salmon and Sons, Inc. (“Pat Salmon”),
collided with the back of the C. Bean truck. That collision
caused only minor damage to both trucks, but it disabled the Pat
Salmon truck and at least partially obstructed both lanes of
traffic. Very shortly thereafter, a Hyundai sedan approached the
stationary truck and applied its breaks. A third commercial
truck owned by Pitt Ohio Express LLC. (“Pitt Ohio”) and driven
by Thomas Miller collided with the back of the Hyundai,
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propelling the car into the back of the Pat Salmon truck. 1 Both
occupants of the Hyundai and a passenger who had exited the Pat
Salmon truck died in the collision.
After the accident, Banik, the driver of the second, Pat
Salmon truck, was charged with reckless driving and pleaded
guilty to a lesser offense of driving improperly on the night of
the accident. Pitt Ohio, the owner of the third truck, agreed
to voluntary settlements with the estates of the three
decedents. The decedents’ estates agreed to release all
liability claims against Pat Salmon as part of the settlement.
Pitt Ohio then filed this action in the District Court for the
Western District of Virginia seeking contribution from Pat
Salmon and C. Bean for their joint liability in the collisions
and resulting settlements.
Before trial, Pat Salmon unsuccessfully moved for summary
judgment on the questions of negligence and proximate causation.
Pitt Ohio filed motions in limine to exclude expert testimony as
to the proper standard of care for operating commercial vehicles
and to exclude evidence of the presence of beer containers in
1
For ease of reference, we refer hereinafter to Fewell, the
driver of the first truck, and C. Bean, the owner of the first
truck, collectively as “C. Bean.” We likewise refer generally
to Banik, the driver of the second truck, and Pat Salmon
collectively as “Pat Salmon.” And we refer to Miller, the driver
of the third truck, and Pitt Ohio collectively as “Pitt Ohio.”
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the cab of the Pitt Ohio truck. The district court granted both
motions. Pitt Ohio proceeded to trial, where the jury returned a
verdict against Pat Salmon. 2 After denying appellants’ renewed
motion for judgment as a matter of law, or in the alternative, a
new trial, the district court entered judgment against
appellants for $687,500.00. This appeal follows.
II.
A.
Pursuant to Federal Rule of Civil Procedure 50(b), we will
affirm the denial of a renewed motion for judgment as a matter
of law if, “‘giving [the non-movant] the benefit of every
legitimate inference in his favor, there was evidence upon which
a jury could reasonably return a verdict for him....’” Cline v.
Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998)
(quoting Abasiekong v. City of Shelby,
744 F.2d 1055, 1059 (4th
Cir. 1984)). Meanwhile, the decision to grant a new trial under
Federal Rule of Civil Procedure 59(a) “is within the sound
discretion of the district court, and we respect that
determination absent an abuse of discretion.” Id.
2
The jury found no negligence on the part of C. Bean. It is
not a party to this appeal.
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Given these standards, the jury verdict should be
sustained. The jury could have determined, evaluating the
evidence in the light most favorable to Pitt Ohio, that Banik,
the driver of the second, Pat Salmon truck, was driving
negligently when he drove his vehicle into the back of the C.
Bean truck. In cases involving the negligence of a following
vehicle, it “is for the jury” to determine “what due care
required, and whether it was exercised.” S. Fruit Distributors
v. Fulmer, 107 F.2d 456, 458 (4th Cir. 1939). The jury was
entitled to reject Banik’s testimony that he did nothing wrong
on the day of the accident, especially in light of his guilty
plea to improper driving. Such determinations are for the trier
of fact, and on appellate review, “[w]e do not weigh evidence
nor judge the credibility of witnesses.” First Union Commercial
Corp. v. GATX Capital Corp.,
411 F.3d 551, 556 (4th Cir. 2005).
Similarly, there was sufficient evidence for the jury to
find that Banik’s negligence proximately caused the three
deaths. Under Virginia law, “[t]he proximate cause of an event
is that act or omission which, in natural and continuous
sequence, unbroken by an efficient intervening cause, produces
the event, and without which that event would not have
occurred.” Doherty v. Aleck, 641 S.E.2d 93, 97 (Va. 2007)
(internal quotation marks omitted). Pat Salmon argues that
there were in fact two separate accidents separated by five to
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ten seconds, and that because Banik was involved only in the
first, he did not cause the second, fatal accident. That theory
was presented to the jury at trial, but as the district court
noted, the jury “didn’t buy it.” Instead, it evidently viewed
the collision between the Pat Salmon and C. Bean trucks as part
of one larger accident. The jury determined that Banik’s
negligent operation of his truck was the first step in a chain
reaction that led to the three deaths, and it is within the
province of the trier of fact to make such a finding.
B.
Next, appellants argue that the district court should not
have excluded testimony by their accident reconstruction expert
on the standard of care for operating a commercial truck in
difficult conditions. We review the exclusion of expert
testimony for abuse of discretion. See United States v. Barile,
286 F.3d 749, 753 (4th Cir. 2002).
As an initial matter, Pat Salmon did not preserve its
appeal of the district court’s exclusion of the expert’s
testimony. Pat Salmon did not disclose in the record the
substance of what the witness intended to say. See Fed. R. Evid.
103(a)(2) (“if the ruling excludes evidence, a party [must]
inform[] the court of its substance by an offer of proof” in
order to claim error); United States ex rel. Ubl v. IIF Data
Solutions, 650 F.3d 445, 455 n.2 (4th Cir. 2011). Absent that
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disclosure, this court cannot properly determine whether the
expert’s testimony might have been admissible. In addition, the
district court originally excluded the expert’s testimony
because a complete statement of his opinions was not properly
disclosed in his written report, as required under Federal Rule
of Civil Procedure 26(a)(2)(B). Appellants do not challenge this
ruling on appeal, and there is no basis for this court to review
it.
The district judge’s decision to exclude the testimony was
also sound on the merits. Expert testimony has its place, but
courts are permitted to exclude expert testimony when “it
concerns matters within the everyday knowledge and experience of
a lay juror.” Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993).
The district court was well within its discretion when it
determined that the jury was best positioned to “decide from the
evidence whether someone was driving too slow or too fast or was
otherwise negligent under the conditions encountered on April
20, 2009.”
C.
Finally, appellants argue that the district court abused
its discretion by excluding under Federal Rule of Evidence 403
testimony that there were beer containers in the cab of the Pitt
Ohio truck. “A district court's evidentiary rulings are
entitled to substantial deference, because a district court is
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much closer than a court of appeals to the pulse of the trial.”
United States v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992)
(internal quotation marks ommitted).
Under Virginia law, evidence such as a person’s “manner,
disposition, speech, muscular movement, general appearance or
behavior” must be presented in order to admit the issue of
intoxication properly. Hemming v. Hutchinson, 277 S.E.2d 230,
232 (Va. 1981). Because such evidence was not presented by
appellants, the district court was entitled to exclude testimony
regarding the beer containers as unfairly prejudicial. Weighing
the probative against the prejudicial under Rule 403 is a
classic call for a district judge, and the court below did not
abuse its discretion in excluding the evidence of the beer cans
as unduly prejudicial.
III.
The trier of fact cannot be said to have unreasonably
decided the issues of negligence and causation. The district
court’s evidentiary rulings were within its sound discretion.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED
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