UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.
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Unpublished opinions are not binding precedent in this circuit.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