2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
10-27-2004 

# R a vott i v . S unde rl a nd P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-3770

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

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w Di g it al Re posit or y

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w . v i l l a no va . e du/thir dc ir c uit_2004/195NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT No: 03-3770 ANT HON Y J. RAVO TTI, an incapacit ated per son, JANET G. RAV OTTI, guardian of hi s person Plaintiff-Appell ee

v. RICHARD L. SUNDERLAND; LEE A. BI GLER, d/ b/a / BI GLER CONCRETE; PEN NS YL VA NIA DE PA RT ME NT OF TR AN SPO RT AT ION ; PEN NS YL VA NIA TURNPI KE COMMIS SI ON; NEW ENTE RPRI SES STONE & LI ME COMPANY, De fend ants NEW ENTE RPRI SES STONE & LI ME COMPANY,

Appellant On A ppeal from the Un ited States District Co urt for the We stern D istrict of P enns ylvania (Civil Action No. 00-49J) Distri ct Judge: Hon. David S. Cercone Argued: September

23, 2004 Be for e: M cK EE , AL DI SE RT and GR EE NB ER G, Circuit Judges (Opinion fi led: Oct ober 27, 2004)
MICH AEL L OUIK (A rgued) Me yers, Rosen, Lo uik & Perry 200 Frick Buil ding Pitt sburgh, PA 15219 Attorney for R avotti’s

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PAUL V. ESPOSITO (argued) Clausen Mill er 10 South LaSall e Street Suite 1600 Chicago, I L 60603 Attorneyfor New Enterpris es Stone & Lime Company
OPI NION

M cK EE , Circuit

Judge
. New Enterprises S tone and Lime C omp any (“NE ”) appeals the district court’s denial of its motion for j udgment as a matter of la w (“JMOL ”) or a new trial. For the
reas ons that f ollo w, w e w ill aff irm. I. Because we write onl y for the part ies, it i s not neces saryto reci te thefacts or pro ced ura l histo ry of th is ca se e xce pt in sof ar as ma y be h elpf ul to our brie f dis cus sion
. NE first contends that

the dis tri ct court

erred i n not requi ring pl ainti ff to offer expert testi mony as t o both the s cope of NE’s all eged dutyto properly inst ruct t ruck driver s and the relevant standard of care i n the highwayconstruction and trucki ng indust ry . NE rests its argument i n large part upon Young v. Pen nsylvania Dept. of Trans. , 744 A.2 d 12 76 ( Pa. 2 000 ). The issue i n Young wa s “w hethe r exp ert testim ony is ne cessa ry to ascerta in if
wa rning signs s hou ld be p laced three m iles aw ay from a con struction site on a n inters tate

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highway. ” Id . at

1277. The case i nvolved a car accident in which plainti ff’s husband was kille d w hen he s truc k a m edia n w hile a ttem ptin g to avo id sto ppe d tra ffic
. Id . There, plaint iff cont ended that

PENN DOT was negligent for fail ing to pr operlyplace advanc e warning si gns, but

the Pennsy lvania

Supreme Court affi rmed the t rialcourt’ s grant

of
sum ma ry judg me nt in fav or o f the def end ant. Id . at 1279. In doing so, t he court first review ed the stand ards f or ex pert testim ony un der P enns ylvania law stating: Expe rt testimony i s often empl oyed to help jurors unders tand is sues and ev idence which is out side of t he average j uror’s normal rea lm of experi enc e . We have stated that , “[t ]he em ploy ment of tes timonyof an expert rise s from ne ce ss ity, a necessi tyborn of the fa ct that t he su bject m atter of the inq uiry is one involvi ng specialskil l and tr aining be yond the ken of the or dinarylay man. Reardon v. Meehan , 424 Pa. 460, 227 A. 2d 667, 670 (19 67). Con versely, “[I]f all the pri mary fa cts can be accuratelydescri bed to a j ury and if the juryis as capa ble of comprehe ndi ng and underst anding such fa cts and dr awing correc t conclusi ons fr om them a s are witnesses pos sessed of s pecialtrai ning, experie nce or observa tion, then there is no nee d fo r the testim ony o f an exp ert.” Id . at 1278. The court

stated that

“laywitnesse s are [not ] able to impart s uffici ent knowledge to j urors regarding t he many variable s which are required to establ ish the existence of a legal duty to plac e signs ove r thr ee miles away from a const ructi on zone.” Id. Ho we ver , Young provides lit tle s upport for

NE’s positi on here. I n Young , the lay witnesses w ho w ere not com petent to testify about the C omm onw ealth’s legal duty were the othe r dri vers i n the tr affic j am. Here, t he evidence i ncluded t esti mony from experie nced truc k driver s, cons truction si te managers and other professi onals i n the construction f

ield. The jury[was as] . . . c apable of compre hending and under standi ng

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[that testimony] and drawing correct concl usions from [it].
. . . [Thus,] t here [was] no need for the testimo ny of an expe rt.” NE wa s, after a ll, hiring in depe nden t trucke rs to haul m aterial aw ay from its cons truction site to be “dum ped” elsew here. Ju rors co uld certain ly unders tand th e nee d fo r the truc kers to kno w w here th ey wer e goin g and how to get the re w ithout re lying on a n exp ert. NE next argues that thetraffi c patt ern in t he constr uction z one was not confusi ng
an d tha t i t d idnot

ca us e Su nde rl an d t o s to p i n a li ve lane . I n a ss erti ng t hi s c laim , N E merely reargues the evidence that was b efore the jury. In fact, at oral argum ent, NE ’s counsel as ked us to fi nd that, “as a matter of la w,” the roa dway was clean and clear enough to avoi d any confus ion. However, at trial, both si des prese nted evi dence
re ga rd in g the tr af

fi c p atte rn at

th e c ons tr

uc ti on s ite. Bas ed on o urre vi ew o f the re co rdwe believ e there wa s suff icient ev idenc e to esta blish th at road wa y confu sion w as ne gligen tly creat ed by NE, and t

hat it was a contributing fa ctor i n the acci dent. Thus, havi ng found suffici ent evi dence to suppor t a jur y ver dict on t

hese grounds, we cannot rul e as a matter of law that NE was en titled to a verdict in its favor. NE also asks us to find that the di stri ct court erred i n admitting a Gannett Fleming, Inc. ( “GFI”) memo, which potent iall y suppor

ted plainti ff’s theory that, on the night of the
acc iden t, NE sho uld hav e res tricte d th e ea stbo und lane of th e tur npi ke to one lane
. Specifi call y, the GFI memo stat ed that the Pennsy lvania

Turnpike Commissi on “direc ted that t he singl e lane pattern be e xtended full len gth th ro ugh th e ap pr oac hes of Brid ge B-

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445.” (emphas is i n origi nal). NE contends that , becausethe GFI memo lacked a prope r fo und atio n, th e d is tric t c our t e rred inad mi tt

in g the memo as a b us in es s r ec or d. NE argu es that th e critical sta teme nt in the mem o w as inad missib le bec ause it was offe red to establ ish the trut

h of the Commissi on’s al leged re quirement extendi ng the lane closure. NE also co ntend s that “th e bus iness re cord exce ption d oes n ot em brace statem ents contained within a business record that were made by one who is not a part of the business if the embraced st atements are offer ed for the ir t ruth. ” United Stat

es v. Vigneau , 187 F.3d 70, 75 (1st Cir . 199 9) (e mp has is in o rigin al). Alth oug h w e agre e that th e disp uted s tatem ent in th e me mo wa s imp rope rly admitt ed, we conclude t hat theerror

was harmless be cause othe r evidenc e negated t he impact of t

his memo. That testi mony included evidence t hat, following GFI’ s submiss ion of the memo to NE, and pri or to fi naliz ing the pl ans for the constr uction s ite, GFI met with the C om missio n and “[a]g reem ent w as reac hed th at the lan e w ould be clo sed o nly when NE simultaneousl y conducted bridge and pavement repair work . . . [and] when simult aneous work was not ongoi ng, the lane shoul d remain open. ” The subsequent agreement negated thememo’s critical statement. The j ury also heard evidence t hat the “approaches ” mentioned i n the memo “would be those approaches t hat le ad up to the bridge. ” The accident

happened about 700 fee t bey ond the bri dge. Therefore, the disp uted state me nt in the m em o di d no t eve n pe rtain to th e ac cide nt ar ea. NE next contends t

hat it should be “release d . . . from liabili ty ” because

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Sun derlan d’s “u nfo reseea ble,” “h ighly extra ordin ary” and “abn orm al” co ndu ct in stoppi ng his t

ruck in a l ive lane of tra ffic, along with t he speed at

which Ravottiwas trav eling prio r to th e ac cide nt, “w ere th e on ly sub stan tial fa ctor s ca usin g th e ac cide nt.” Ho we ver , NE ’s arg um ent is aga inst th e w eigh t of P enn sylvan ia au tho rity. See Powell v. Drumheller , 539 Pa. 48 4, 493, 653 A.2d 6 19, 623 (1 995) . The plaintiff i n Pow ell , al leged that “the accident [in which her

husband was killed] w as cau sed b y two co ncur ring ca uses: (1 ) the ne gligen t driving of [c o-de fend ant] under the i nfluence of al cohol and (2) the negl igent de sign and maintenance of the Commonw ealth highway which prevented Mr. Powellfrom taki ng acti on to avoid t he accident .” Id . at

492. The Pennsy lvania Supreme Court had t o decide “whethe r the criminally

neglige nt conduct

of [a] co-de fendant . . . i n drivi ng under the i nfluence of alcohol is a supe rceding c ause rel ieving PENNDO T of liabi lit y for neglige ntly

designi ng a Commonw ealth highway. ” Id . at 488. The court

concluded that was a jury ques tion and would not “as a

matter of law [conclude] that [ co-defendant ’s] convi ction f or dri ving under the i nfluence was a supe rceding c ause.” Id . at 49 5. Sim ilarly, the parties here p resen ted va rious th eories of ca usation and, a s in Pow ell , the dist

rict court cor

rectl y al lowed the j ury to asse ss faul t and to de cide i f the behavior of

Sunderland or

Ravotti was suffici ently “extra ordinary t o consti tute a supersedi ng cause.” We cannot conclude, as a matt er of la w, that the jur y’ s determinati on was in e rror.

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NE next maintai ns that

the dis tri ct court

abused it s discretion i n allowing testimony regarding Exhibit 73 . Exhibit 73 is a d ocum ent created by N E’s risk ma nager, Willi am Carr, during his investigati on of the acci dent. It cont ains a s pecifi c notation by Carr of an employ ee’s comment t hat thespeed li mit at

the ti me of the acci dent was 55 mph. While questioning Carr on rebutt al about

his purpos e in preparing Exhibi t 73, plaint iff asked: All of these pe ople that y ou spoke with t o get thi s information in orderto dischar ge your

duties as a ris k manager, as well as y our contr actualobligat ions that yo u sa y t

hat yo u owed to th e i nsur ance compa ny , y ou sp oke to [NE] emp loyees, isn’t th at right? Supp. App. At 955. Addit ionall y, in earl ier testi mony, pl ainti ff had cross -examined defense expert Walter

Kilares ki, and asked him if he had been given Exhi bit 73 during or after preparation of his exp ert report. Kilareski respo nded tha t he had n ot seen the rep ort befo re. In his repo rt, Kilare ski co nclud ed tha t the spe ed lim it was 40 m ph. A ccord ing to NE , Exh ibit 73 w as irrelev ant, its intro ductio n pre judice d N E be caus e plain tiff use d it to elic it i nformati on about ins urance, and plai ntiff improperl y use d it to portr ay NE as an evild oer that w ithh eld im por tant d ocu me nts f rom its ex per t. We disag ree w ith eac h ofthese c onten tions. F irst, as plain tiff po ints ou t, Exh ibit 73 w as relev ant be caus e N E an d Su nder land “ defe nded this cas e by claim ing tha t Rav otti
wa s gu ilty of c ont ribu tory ne glig enc e fo r, inter alia , dri ving in exc ess of an al leged 40 mph speed limit at the accident scene . . . [and] Ravotti attempted to meet Defendan ts’ argu men ts con cernin g R avotti’s s peed by show ing tha t, for va rious re ason s, one could

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have easi lybeen confused as to the speed. ” Appellee’ s Br. at 20-1. Second, the introduction of Exhibit 73 was consistent with Fed. R. Evid. 411, which states : Evidence that a

person was or was not

insured againstliability is not ad missib le upon the issue w he th er th e p er so n a cte d n eg lig en tly o r o th er w ise w ro ng fu lly. This rule does not require the e xc lusi on o f evidence of insurance against liability when offered for another pur

pose, s uch as proof of agenc y, ownership, or control, or bi as or prejudice of a witness. A lth ou gh pl ain tif f d id no t o ff er Ex hi bi t 7 3 s pe cif ica lly to sh ow “p ro of of ag en cy,
own ership, or control or b ias or prejudice o f a witnes s,” under Posttape Ass oc. v. Eas tma n Kod

ak Co ., 537 F. 2d 751, 758 (3d Cir . 1976), so long as “ the evi dence is of fered for o ther rele vant p urpo ses [i.e. o ther tha n the in feren ce tha t a party acte d neg ligently], it may be admit

ted. ” Exhibit

73 was relevant

to the i ssue of the speed li mit and the passi ng referenc e to “the insur ance company” did nothi ng more than expl ain why t he witness was asking NE’s employ ees questions about the acci dent. The questi oning als o served the per mis sible pur pos e of cha lleng ing the a ccu racy o f K ilare ski’s exp ert re por t. Finally, NE argu es that the district court abuse d its discretion in instructing the jury regardi ng 67 Pa. Code § 601.6 [pr ohibiting non-emerge ncy s tops i n specifi c secti ons of Tur npi ke] and75 Pa . C. S. § 33 62 [ pos ti ng o f s pee d l imi ts ]. Howev er , e ven if we as sum e that t he court’ s inst

ructi on was erroneous, we would neverthel ess vie w the error as harmless . There was suff icie nt evide nce at t

rial , unrel ated t o these t raffic laws, to allow the jury to a ssess th e partie s’ con flicting p osition s con cernin g the s peed limit and to sup por t the j ury’s a ppo rtion me nt o f fa ult.

### 9 III. Fo r the for ego ing reas ons , we wil l aff irm t he d istrict cou rt’s ju dgm ent.