NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 19-1731

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DELAWARE AND HUDSON RAILWAY COMPANY, INC.,

d/b/a Canadian Pacific Railway; SOO LINE RAILROAD COMPANY, 

d/b/a Canadian Pacific Railway; CANADIAN PACIFIC RAILWAY LIMITED,

 Appellants

v.

KNOEDLER MANUFACTURERS, INC.;

DURHAM INDUSTRIAL SALES, INC. 

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 1-11-cv-00314)

District Judge: Honorable Barbara Jacobs Rothstein

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Argued: November 13, 2019

Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges

(Opinion Filed: February 12, 2020)

Matthew J. Hammer

Daniel J. Mohan

Daley Mohan Groble

Suite 1600

55 West Monroe Street

Chicago, IL 60603
2

Gregory N. Longworth

Clark Hill

200 Ottawa Avenue, N.W.

Suite 500

Grand Rapids, MI 49503

Randall J. Pattee [ARGUED]

Alex L. Rubenstein

Fox Rothschild

222 South Ninth Street

Suite 2000

Minneapolis, MN 55402

Counsel for Appellants

Daniel R. Bentz, I [ARGUED]

Marks, O’Neill, O’Brien, Doherty & Kelly

707 Grant Street

2600 Gulf Tower

Pittsburgh, PA 15219

Matthew R. Planey

Crabbe, Brown & James

500 South Front Street

Suite 1200

Columbus, OH 43215

Counsel for Appellee Knoedler Manufacturers Inc.

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OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
3

SCIRICA, Circuit Judge

This appeal involves claims for contribution and breach of contract made by 

railroad companies Delaware and Hudson Railway Company, Soo Line Railroad 

Company, and Canadian Pacific Railway Limited (collectively, “CP”) against a seat 

manufacturer, Knoedler Manufacturers, Inc. After eight days of trial, the jury returned a 

verdict finding CP had not proven the elements necessary for its contribution claim but, 

inconsistent with that determination, also apportioned five percent fault to Knoedler. The 

jury found CP’s contract claim was barred by the applicable statute of limitations and, 

even if not barred, that CP had not proven any breach. After the jury had been 

discharged, CP and Knoedler filed post-verdict motions focusing on the purported

inconsistency in the jury’s verdict on the contribution claim. The trial court molded the 

jury verdict in favor of Knoedler, eliminating the jury’s five percent liability finding

against Knoedler. CP appealed. For the reasons that follow, we will affirm.1

I.

CP is a Class I railroad operating in North America. Knoedler is a seat 

manufacturer. CP purchased locomotives from General Electric (“GE”) beginning in 

1995. At CP’s request, GE contracted with Knoedler and installed Knoedlermanufactured seats in the locomotives. Between 2009 and 2011, four CP employees were 

 

1 The trial court possessed subject-matter jurisdiction under 28 U.S.C. § 1332(a)(3) 

because the amount in controversy exceeded $75,000 and the controversy was between 

citizens of different states and a foreign state. We exercise jurisdiction under 28 U.S.C. 

§ 1291. Frank C. Pollara Grp., LLC v. Ocean View Inv. Holding, LLC, 784 F.3d 177, 

184 n.9 (3d Cir. 2015).
4

injured when the Knoedler-manufactured seats failed. CP settled these employees’ claims 

for approximately $2.7 million. 

After settling its employees’ claims, in 2011 CP sued Knoedler and Durham 

Industrial Sales, Inc., a maintenance company, for contribution2and breach of contract. 

CP settled with Durham before trial. The matter was eventually set for trial with the 

remaining parties. Over the course of about a month (before and during trial), the parties 

submitted several iterations of proposed jury instructions and jury verdict forms before

eventually settling upon mutually acceptable versions. The verdict form began with four 

questions, all pertaining to the contribution claim:

Question No. 1: Did Knoedler violate the Locomotive Inspection Act by 

providing seats which were (a) not in proper condition and safe to use in 

locomotives without unnecessary danger of personal injury and/or were 

(b) not securely mounted and braced?

* * *

Question No. 2: Did any violation of the Locomotive Inspection Act on the 

part of Knoedler cause, in whole or in part, no matter how small, the injuries 

sustained by Steven Alcorn, Thomas Holleran, John Slaughter, and Daniel 

Franklin while using Knoedler-manufactured seats?

* * *

Question No. 3: Did any violation of the Locomotive Inspection Act on the 

part of CP, GE or Durham cause, in whole or in part, no matter how small, 

the injuries sustained by Steven Alcorn, Thomas Holleran, John Slaughter, 

and Daniel Franklin while using Knoedler-manufactured seats?

 

2 We previously held the contribution claim was not preempted by the Locomotive 

Inspection Act, 49 U.S.C. § 20701. Del. & Hudson Ry. Co. v. Knoedler Mfrs., Inc., 781 

F.3d 656, 662 (3d Cir. 2015). The LIA and its regulations “provide binding standards for 

the suppliers of locomotives and locomotive equipment, as well as for railroad 

companies.” Id. at 659. 
5

* * *

Question No. 4: What percentages were Knoedler, CP, GE, and Durham at 

fault for the injuries sustained by CP’s employees while using Knoedlermanufactured seats?

Joint App. 358. The jury answered “no” to Question Nos. 1 and 2 and “yes” to Question 

No. 3. And even though the jury found CP had not proven the two elements required of 

its contribution claim against Knoedler, the jury apportioned liability under Question No. 

4 as follows: 5% to Knoedler, 25% to CP, 70% to GE, and 0% to Durham. Joint App. 

382.

After the jury returned its verdict, the trial court asked counsel if they wished to 

review the verdict form. Counsel declined and the jury was dismissed. Neither counsel 

requested relief under Federal Rule of Civil Procedure 49, which controls relief from an 

inconsistent jury verdict. Shortly after the jury’s dismissal, both parties moved for relief 

based on the jury’s inconsistent verdict. In post-trial briefing, CP requested the trial court 

to order a new trial because the jury’s verdict was irreconcilably inconsistent and 

Knoedler requested the trial court to mold the verdict in its favor because the jury found 

CP had not proven the elements of its contribution claim. The trial court denied CP’s 

motion and granted Knoedler’s motion. The trial court molded the verdict to conform 

with the jury’s response to the Question Nos. 1 and 2 on the verdict sheet, and judgment 

was entered in Knoedler’s favor on CP’s contribution claim.

CP appealed and we are presented with three issues: (1) whether the trial court 

erred in categorizing the verdict as a general verdict with answers to written questions 

rather than as a special verdict; (2) whether the trial court erred in not finding, as a matter 
6

of law, that a violation of the Locomotive Inspection Act (“LIA”) caused injury here; and 

(3) whether the trial court erred by changing its ruling on the repair doctrine after CP had 

concluded its case-in-chief.

II.

First, we will address the categorization of the verdict.3 CP argues the trial court 

incorrectly categorized the verdict as a general verdict with answers to written questions.

Knoedler disagrees. Our decision on this narrow issue affects whether CP may have 

waived the availability of relief because inconsistency objections must be made before a 

jury is discharged if the jury has returned a general verdict. We conclude the verdict is a 

general verdict with answers to written questions and that CP has waived its 

inconsistency challenge because no objection was made before the jury was discharged.

There are three types of verdicts contemplated by the Federal Rules of Civil 

Procedure: a general verdict, a general verdict with answers to written questions, and a 

special verdict. Fed. R. Civ. P. 49. The first type, a general verdict ,“is a ‘verdict by 

which the jury finds in favor of one party or the other, as opposed to resolving specific 

fact questions.’” Frank C. Pollara Grp., LLC v. Ocean View Inv. Holding, LLC, 784 F.3d 

177, 190 (3d Cir. 2015) (quoting General Verdict, Black’s Law Dictionary (10th ed. 

2014)) [hereinafter Pollara]. The second type, a general verdict with answers to written 

 

3 Our review of the categorization of the verdict is de novo. See Paolella v. BrowningFerris, Inc., 158 F.3d 183, 189 (3d Cir. 1998) (“We review the district court’s denial of a 

motion for a new trial for abuse of discretion, ‘unless the court’s denial of the motion is 

based on the application of a legal precept, in which case the standard of review is 

plenary.’” (quoting Rotondo v. Keene Corp., 956 F.2d 436, 438 (3d Cir. 1992))).
7

questions, “is a hybrid form in which the jury is asked to render a general verdict in 

conjunction with findings of fact. In other words, the jury is asked to decide mixed 

questions of law and fact, with the guidance of legal instructions.” Id. (citations omitted).

The third type, a special verdict, “is a form where the jury answers only ‘special written 

finding[s] on each issue of fact.’ . . . The jury’s sole function is to determine the facts; the 

jury needs no instruction on the law because the court applies the law to the facts as 

found by the jury.” Id. (quoting Fed. R. Civ. P. 49(a)(1)) (alteration in original).

To determine the type of verdict rendered, a court must consider “the totality of 

the district court’s instructions” and “determin[e] whether the court instructed the jury, 

either verbally or in writing, to make a general finding for the plaintiff or the defendant, 

in addition to findings of actual or ultimate facts.” Simmons v. City of Phila., 947 F.2d 

1042, 1058 (3d Cir. 1991) (citing McLaughlin v. Fellows Gear Shaper Co., 786 F.2d 592, 

595 n.2 (3d Cir. 1986); Stanton v. Astra Pharm. Prods., 718 F.2d 553, 574–75 (3d Cir. 

1983)). In other words, we must determine whether the instructions and the verdict sheet 

required the jury to make a finding on the ultimate question of liability.

This case turns on Question No. 4, which asked “[w]hat percentages were 

Knoedler, CP, GE and Durham at fault for the injuries sustained by CP’s employees 

while using Knoedler-manufactured seats.” Joint App. 382 (emphasis added). Implicit in 

the apportionment of fault (even accepting the contention that the percentages

apportioned were findings of fact) is a liability finding, the ultimate question here. In 

other words, the jury necessarily decided the ultimate question of liability on the 

contribution claim in apportioning liability for it.
8

The jury instructions, in the final form agreed to by the parties and read to the jury, 

explicitly direct the jury to make a finding as to liability. The jury was instructed as 

follows: “In a civil action such as this, Plaintiff CP has the burden of proving every 

essential element of CP’s claims by a preponderance of the evidence. If plaintiff CP 

should fail to establish any essential element of one of its claims by a preponderance of 

the evidence, you should find for defendant Knoedler as to that claim.” Joint App. 333

(emphasis added). Moreover, the jury was given multiple conditional instructions. Instead 

of conditioning the jury’s decision as to Question No. 4 on factual determinations, the 

instructions are conditioned on a finding of ultimate liability. See Joint App. 341 (“If you 

find that defendant Knoedler is legally responsible for proximately causing plaintiff’s 

employee’s injuries, you may consider whether Knoedler is responsible for all or a 

portion of the damages.” (emphasis added)).

Considering the totality of the verdict sheet and the jury instructions, the jury was 

required to make a finding as to ultimate liability. The trial court correctly categorized the 

jury’s verdict as a general verdict with answers to written questions. And because CP did 

not challenge the verdict’s inconsistency before the jury was discharged, CP has waived 

any subsequent challenge as to inconsistency. Pollara, 784 F.3d at 191 (“[I]f a party fails 

to object to an inconsistency in a general verdict before the jury is excused, that party 

waives any objection in that regard.”).4 Accordingly, we will affirm the trial court’s 

conclusion that this case presents a general verdict with answers to written questions and 

 

4 CP’s counsel agreed that if we were to conclude the trial court correctly categorized the 

verdict, CP has waived any argument as to inconsistency.
9

we conclude that any inconsistency challenge has been waived by CP.

III.

Two issues remain for us to resolve, neither of which were raised in the postverdict motions in the trial court. Knoedler contends the remaining issues have not been 

preserved for appellate review. We conclude both issues have been adequately preserved 

for appellate review, because both pose only questions of law. See Pollara, 784 F.3d at 

187 (“[I]f an earlier dispositive argument is not renewed . . . the litigant propounding the 

argument may not seek appellate review of a decision rejecting it, unless that argument 

presents a pure question of law that can be decided with reference only to undisputed 

facts.”).5 Accordingly, we will address each legal issue on the merits.

A.

CP contends the trial court erred when it refused to instruct the jury as a matter of 

law that Knoedler had violated the LIA6and that its violation had caused injury.7 Before 

 

5 To the extent presented, we will not address CP’s contentions as to the sufficiency of 

the evidence because CP did not preserve that issue for appellate review. See Charles 

Jacquin et Cie, Inc. v. Destileria Serralles, Inc., 921 F.2d 467, 475 (3d Cir. 1990) 

(“Where a party has failed to [renew its motion for judgment as a matter of law], we will 

not review the sufficiency of the evidence . . . .” (citations omitted)).

6 CP contends Knoedler violated the LIA or its regulations by providing seats “not in a 

proper condition and safe to use in locomotives without unnecessary danger of personal 

injury” or seats that “were not securely mounted and braced.” Appellant Br. 4 (citing 49 

U.S.C. § 20701(1); 49 C.F.R. § 229.119(a)). 

7 We “review a denial of judgment as a matter of law de novo, viewing the evidence in 

the light most favorable to the prevailing party.” Monteiro v. City of Elizabeth, 436 F.3d 

397, 404 (3d Cir. 2006) (citing Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 

2005)).
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trial, CP filed a motion in limine requesting the trial court to hold, as a matter of law, that 

Knoedler violated the LIA and the violation caused the injuries to CP’s employees. The 

trial court deferred decision pending trial. Before charging the jury, the trial court once 

again considered whether to enter judgment as a matter of law on this issue. The trial 

court was inclined to grant CP’s request, but Knoedler objected, arguing a factual dispute

remained. Accordingly, the trial court denied CP’s request and instead allowed the jury to 

decide the issue. The jury decided Knoedler did not violate the LIA.

It was not erroneous for the trial court to deny CP’s request because there 

remained a factual disagreement that was properly decided by the jury. Knoedler agreed, 

by pretrial stipulation, that all four seats broke because the seat bases were fractured and 

these fractures led to the injuries of CP’s employees. But Knoedler maintained then and 

maintains now that it “had no role in the installation, maintenance, or repair of the seats 

during the time period that the seat bases developed fractures and ultimately failed.” Joint 

App. 91; see also Appellee Br. 26–29. In other words, Knoedler did not stipulate to its 

liability. Instead, the parties disagreed over when these fractures occurred and why.

Accordingly, we will affirm the trial court.

B.

CP also contends the trial court should have found, as a matter of law, that 

Pennsylvania’s repair doctrine applied to CP’s contract and warranty claims.

8

If the repair 

 

8 Pennsylvania’s repair doctrine states that “the statute of limitations will be tolled only 

where ‘evidence reveals that repairs were attempted; representations were made that the 

repairs would cure the defects; and the plaintiff relied upon such representations.’” Keller 

v. Volkswagen of Am., Inc., 733 A.2d 642, 646 (Pa. Super. Ct. 1999) (quoting Amodeo v. 
11

doctrine applied, the contract and warranty claims would not be barred by the statute of 

limitations. CP contends the undisputed facts show that after Knoedler was informed of

the alleged defects in the chairs, Knoedler “continue[d] to participate in efforts to repair 

the seats.” Appellant Br. 30. 

CP moved for the trial court to enter a finding of fact that the repair doctrine 

applied to CP’s contract and warranty claims. On the second day of trial, the trial court 

stated, based on the facts then presented, that there was “no way that eight reasonable 

people could find that the repair doctrine doesn’t hold” and “[a]s a matter of law, given 

the facts I’ve heard, I don’t think it’s a factual question.” Joint App. 433. As a result, the 

trial court indicated the repair doctrine would be applicable as a matter of law and that the 

contract and warranty claims would not be barred. After CP had closed its case-in-chief, 

the trial court revised its ruling, holding the issue of the applicability of the repair 

doctrine was a factual question that should be determined by the jury. CP did not ask the 

trial court to re-open its case-in-chief or present rebuttal on this topic. The question was 

presented to the jury at the end of trial. The jury determined there had been no breach 

committed by Knoedler and, even if there had been a breach, that the repair doctrine did 

not apply.

Knoedler argues, even assuming the trial court was incorrect, it was harmless error

for the trial court to allow the jury to decide the repair doctrine’s applicability. We agree. 

The jury found there was no breach of any contractual duty or warranty by Knoedler. 

 

Ryan Homes, Inc., 595 A.2d 1232, 1237 (Pa. Super. Ct. 1991)). This presents a question 

of fact. Id. (citing Amodeo, 595 A.2d at 1237).
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Even assuming CP is correct that the statute of limitations did not bar its claims, the trial 

court’s refusal to rule for CP on the repair doctrine as a matter of law is harmless error.

See Woodson v. Scott Paper Co., 109 F.3d 913, 931 (3d Cir. 1997) (concluding harmless 

error in a civil case requires only “a high probability that the error did not affect the 

outcome of the case”). CP’s allegations that the jury was “hopelessly confused” or that 

“answers to special verdict questions . . . simply were not supported by the evidence” are 

conclusory. Appellant Br. 31. CP provides neither record citations, case law, nor 

reasoning to support this contention. Accordingly, because the trial court committed, at 

most, harmless error, we will affirm on this issue.

IV.

For the reasons expressed, we will affirm the judgment rendered.