J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

FRANCIS KOCHMER

Appellant

v.

JOSEPH HOPFNER AND APPLE

CON STRUCTION, INC. A/K/A APPLE

CONSTRUCTION :

:

:

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 637 EDA 2017

Appeal from the Order Entered January 12, 2017

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): August Term, 2013, No. 1308001

BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED JUNE 20, 2018

Francis Kochmer app eals from the January 12, 2017, judgment entered

by the Court of Common Pleas of P h iladelph ia County in favor of Joseph

Hopfner and Apple Construction, Inc. a/k/a A pple Construction (“Apple

Construction) (collectively, “Defendants”)

. On appeal, Kochmer raises several

claims concerning whether the trial court erred in admitting testimony from

the defense accident reconstruction expert. Based on the following, we aff irm.

The trial court set forth the factual history as follows:

Mr. Kochmer, age 52, suffered from significant pre

- existing

infirmities and physical disabilities in September, 2011. He had a

history of cardiac problems, peripheral vascular disease, stent s in

his legs, diabetes, and an inability to run.

[Kochmer] told the jury that at 7:00 p.m. on the evening of

September 7, 2011, he smoked a marijuana cigarette laced with

the liquid drug PCP. Mr. Kochmer testified that smoking the twoJ

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drugs relaxed hi m and did affect his ability to see. He denied

feeling mellow or high. [Kochmer] became hungry and decided

to talk to a Wawa store to buy an ice cream sandwich. The Wawa

was located at the corner of Castor Avenue and Tyson Avenue , a

few blocks from his residence.

At about 8:00 p.m., [ Kochmer ] was returning home and

stood at the corner intending to cross Castor Avenue. Castor

Avenue is six lanes wide including parking lanes on each side of

the street. The cars travel Northbound and Southbound on this

busy roadway. There are no concrete islands or median strips in

the center for pedestrians to stand.

Mr. Kochmer told the jury that he looked to his left and saw

car headlights about a block away. He said he then looked to his

right and the cars were one block in the distance. When he looked

ahead at the traffic signal the light was green and he started

across the street. When he got to the middle of the street,

however, the light changed to red for him and green for the cars

in both directions of C astor Avenue[.] [Kochmer] testified that he

decided to stop in the middle of Castor Avenue.

When [Kochmer] looked to his right, two cars were

approaching him and passed in front of him. He told the jury that

he did not take a step backwards, however, he turned towards the

cars on his left and moved his feet “a little.” When he turned

toward the left [,] he was struck on the left side of his body by the

left bumper of [Hopfner]’s truck. The force of impact spun him

around causing him to hit his head i nto [Hopfner]’s side mirror.

[Kochmer] woke up in the hospital. He fractured his neck

and spine and suffered serious and permanent injuries. He

continues to suffer pain and will endure limitations of movement

of his head, neck and body. He takes nar cotic medications for his

pain management.

[Hopfner] explained how Mr. Kochmer turned into his

truck [ : ]

“As I was getting to where the crosswalk was, all of a sudden

I saw a person walk backwards into the front side of my

truck. It happened real fast and all I had time to do was

--J

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- I turned the wheel a little bit. And next thing I knew, my

mirror goes smashed back and I hit Mr. Koch m er.”

Mr. Hopfner testified that at 8:00 p.m. on September 7,

2011, he was driving home from work on Castor Avenue. Mr.

Hopfner had the green light on Castor Avenue. He observed a

pedestrian cross the street about one

- half block ahead. The

pedestrian crossed thro ugh a red light from the corner and across

the lanes of traffic. Mr. Hopfner took his foot off of the gas pedal

to slow down. He lost sight of the pedestrian. As he approached

Tyson Street, his side mirror smashed into Mr. Kochmer, who fell

to the roadway. Mr. Hopfner stopped and parked his work truck

next to [Kochmer] so that cars would not run him over.

Trial Court Opinion, 3/2/2017, at 1

- 4 (record citations omitted).

On August 5, 2013, Kochmer in itiated this action, alleging negligence

against Hopfner and Apple Construction

. 1 Defendants filed an answer with

new matter and cross

- clai m to Kochmer’s complaint. In their new matter,

Defendants asserted Kochmer’s claims, inter alia , were barred and/or limited

by the provisions of Pennsylvania Comparative Negligence Act, 42 Pa.C.S. §

7102, and the Pennsylvania Motor Vehicle Financial Respo nsibility Law, 75

Pa.C.S. § 1701, et seq

.

Pertinent to this appeal, Defendants provided Kochmer with a copy of a

report authored by their accident re

- constructionist, Robert T. Lynch, P.E.,

dated February 13, 2015. In Lynch’s report, he opined the follo wing, in

relevant part:

_________________ __________ ______ ____ _______

1 Kochmer asserted Hopfner was an “agent, work

- person, employee, and/or

representative” of Apple Construction, and Apple Construction negligently

entrusted the motor vehicle to Hopfner. See Complaint, 8/5/2013, at ¶ 6.J

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-

Whether or not Mr. Kochmer fell into the pickup truck as it passed

by is evaluated against the physical evidence which presented

itself as the damage to the left side of the pickup truck. The first

point of contact between the pick up truck and Mr. Kochmer

occurred to the left front fender of the pickup truck. Mr. Kochmer

did not come in contact with the front of the pickup truck. Mr.

Hopfner was operating the pickup truck northbound within the

left

- lane with intentions to travel s traight through the intersection

at Tyson Avenue. As such, the pickup truck was moving forward

at the time of the initial impact with Mr. Kochmer’s body and it

had no lateral motion. The initial contact between Mr. Kochmer’s

body and the pickup truck cau sed a dent to the left front fender.

This dent could only have occurred as the result of a lateral impact

force during the initial point of impact. Therefore, a relative lateral

motion between Mr. Kochmer’s body and the side of the pickup

truck needed to have occurred in order for the dent to have

existed. Since the truck had no lateral motion as it traveled

straight through the intersection, Mr. Kochmer must have been

moving towards the passing pickup truck at the initial point of

impact. This finding is consistent with Mr. Hopfner’s testimony

that Mr. Kochmer was moving backwards into his truck at the

point of impact as well as Ms. [Fern] Dipentino’s statement and

the narrative in the police report that Mr. Kochmer stumbled into

the truck at impact.

M r. Kochmer testified that he did not fall into the truck at impact,

but his height compared to that of the driver’s side mirror

indicates otherwise. The available material indicates that Mr.

Kochmer’s head came in contact with the driver side mirror on th e

pickup truck during the impact event. The EMS report indicates

that Mr. Kochmer received a laceration to the top of his head. The

top of the driver side mirror of the pickup truck was measured to

be 4 feet 10 inches off the ground. Mr. Kochmer testifi ed that he

was 5 feet 7 inches tall at the time of the incident. Therefore, at

the point Mr. Kochmer’s head came in contact with the driver side

mirror it would have been more than 9 inches lower than his erect

standing height. This indicates that Mr. Ko chmer was in fact in a

less than erect standing position when contact was made with the

driver side mirror, in a posture consistent with a fall or stumble.

It was claimed that the initial impact between Mr. Kochmer’s body

and the left front fender of the pickup truck caused Mr. Kochmer’s

body to spin around and be positioned in an orientation that placed

his head at the height of the driver’s side mirror. However, aJ

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mathematical analysis utilizing the geometry of the pickup truck

along with its speed at i mpact indicates that had the initial impact

between Mr. Kochmer and the left front fender initiated the fall,

his head would have dropped less than 2 inches from the point of

impact to the point where the driver side mirror would pass by Mr.

Kochmer’s body as it traveled through the intersection. This drop

in height would not have positioned the top of Mr. Kochmer’s head

at a height necessary to cause his laceration from the driver side

mirror. Therefore, Mr. Kochmer was already in a posture

consistent wi th a stumble or fall into the truck at the point of initial

impact. The available evidence indicates that at the point of

impact Mr. Kochmer was falling into the left side of the pickup

truck.

Traffic Crash Reconstruction Analysis Report at 8, Exhibit 1 to Kochmer’s

Motion in Limine to Preclude Defendant from Referencing or Introducing

Evidence of Their Accident Re

- Constructionist, Robert T. Lynch, P.E., and His

Report, 9/4/2015.

On September 4, 2015, Kochmer filed a motion in limine to preclude

Defendants from introducing into evidence or referencing Lynch and his

report. Specifically, Kochmer argued:

19. Mr. Lynch states in his report at page 8, that he can prove

[Kochmer] fell, as opposed to walked backward or was standing

still, at the moment immediately prior to impact. He states this

can be proven with mathematical analysis utilizing geometry or

Defendants’ truck. Mr. Lynch does not identify the mathematical

analysis, nor does he show any analysis. He does not discuss or

expl ain the geometry of the truck. Yet, he concludes based on

this phantom analysis and set of facts, that [Kochmer] fell into the

truck, despite [Kochmer and Hopfner] testifying under oath that

[Kochmer] did not fall into the truck.

Defendant Joseph Hopfner stated in his deposition:

Q. And then is it correct the next time you see Mr. Kochmer

is, I think you said, a split second before the accident

happened?J

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- A. He walked backwards into my truck.

[See Defendant Hopfner’s deposition at Page 33, Lines 15

- 20

, attached hereto and marked “Exhibit 3”.]

Plaintiff Francis Kochmer stated in his deposition:

Q. Did you fall into the truck?

A. No.

[See Plaintiff, Francis Kochmer’s deposition at Page 49, Lines 11

-

1 2 , attached hereto and marked “Exhibit 4”].

20. Pennsylvania Rule of Evidence 705 states: The expert may

testify in terms of opinion or inference and give reasons therefore;

however the expert must testify as to the facts or data on which

the opinion or inference is based.

21. [Kochmer] served expe rt interrogatories upon Defendants.

Pursuant to Pennsylvania Rule of Civil Procedure 4003.5,

Defendants elected not to answer the interrogatories but rather

supplied an expert report from Robert T. Lynch, P.E.

22. Pennsylv ania Rule of Civil Procedure 40 03.5[(c)] requires an

expert to disclose all facts held and opinions offered.

23. Defendants should be precluded from offering Mr. Lynch’s

testimony or report as it relates to Mr. Kochmer’s head injury as

proof he fell into Defendants’ truck.

Motion in Limine to Preclude Defendant from Referencing or Introducing

Evidence of Their Accident Re

- Constructionist, Robert T. Lynch, P.E., and His

Report, 9/4/2015, at ¶¶ 19

- 23.

On September 11, 2015, Defendants filed an opposition to Kochmer’s

motion in limine t o preclude Lynch and his report. Subsequently, on July 19,J

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2016, the trial court denied Kochmer’s motion. 2 The case proceeded to a

week

- long trial. On July 22, 2016, a jury rendered a verdict in favor of Hopfner

and Apple Construction. The jury conside red the comparative negligence of

the parties and determined that Kochmer was 60% causally liable for his own

injuries. On January 12, 2017, after post

- trial motions were denied, judgment

was entered in favor of all Defendants. This appeal followed. 3

Ba sed on the nature of Kochmer’s claims, we will address them together.

First, Kochmer asserts Pennsylvania Rule of Civil Procedure 4003.5(a)(1)

controls

, but was ignored by the trial court. See Kochmer’s Brief at 24.

Specifically, he states, “It is axiomatic that Mr. Lynch should have been

precluded from testifying to his egregiously prejudicial and unsupported

‘ falling into the truck ’ opinion, based on his failure to disclose the

mathematical or other scientific analysis that were the grounds for his

opinion.” Id. (citation omitted). Second, he contends, “The Trial Court does

not attempt to justify or even explain its real

- time rulings allowing Mr. Lynch

to testify without disclosing his math ematical analysis. Instead, the Trial

Court seems to suggest that its rulings were harmless. Regardless, its

_________________ __________ ______ ____ _______

2 T he court precluded Lynch from referring to hearsay evidence regarding

Kochmer’s drug use.

3 The court did not order Kochmer to file a concise statement of errors

complained of on appeal under Pa.R.A.P. 1925(b). On Marc h 2, 2017, the trial

court issued an opinion under Pa.R.A.P. 1925(a), adopting its January 12,

2017 opinion , which was filed contemporaneous with its order denying post

trial motions.J

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reasoning, respectfully, is circular and illogical.” Id. at 25 (italics in original)

.

In addition to reiterating that the trial court did not a dhere to Rule

4003.5(a)(1), Kochmer points to five additional aspects of the court’s alleged

error : (1) Kochmer ’s testimony , in which he admitted that he moved his feet

and turned towards the vehicle, cannot justify Lynch’s unsupported expert

testimony ; ( 2) “there is no such equivalency between the fact testimony and

the expert testimony” and there wa s a “world of difference between a trapped

pedestrian turning and simply moving his feet (the Trial Court leaves out the

modifier ‘a little’), and somebody fa lling into a truck ; ” 4 (3) the trial court

seemed to suggest “the fact that ‘[t]he first impact was on the left side of his

body’ [was] incriminating. To the contrary, it [was] completely consistent

with a rational, trapped pedestrian positioning his body so as to give oncoming

traffic the narrowest possible object to avoid[;]” 5 (4) the jury should not have

been assessing whether Kochmer fell or stumbled because “there was zero

competent evidence that Kochmer fell or stumbled into the truck;” 6 and (5)

the c ourt’s final statement, “‘[t]he accident reconstruction expert was well

qualified to present his written report and trial testimony’ [was] a blanket

_________________ __________ ______ ____ _______

4 Kochmer’s Brief at 26

- 27 (emphasis removed).

5 Id. at 27.

6 Id.J

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invocation that simply reads out expert opinion requirements.” 7 Third

,

Kochmer argues the prejudicial impa ct of Lynch’s “falling

- into

- the truck

testimony” was decisive because this was “the only way the defense overcame

the inexcusable fact that Hopfner wasn’t looking where he was going” and

Lynch’s “ baseless expert testimony seemed all the more believable bec ause

Kochmer had taken PCP an hour before.” Id. at 28 (italics in original). Fourth,

Kochmer claims the court impermissibly denied him Lynch’s crucial

mathematical analysis prior to the expe rt’s testimony, which he “was not

required to walk into any trap by himself asking the expert to reveal the

‘calculation’ for the first time during cross

- examination

, ” and it was

“fundamental that [he] needed to know what was coming at trial, ” so that he

could “ prepare accordingly.” Id. at 30. Lastly, Kochmer baldly asserts, “The

ridiculous opinion that Mr. Lynch pronounced was worse than junk [science]

– because he had no scientific data, no research and no analysis to support it,

not even spurious or fraudulent data, research or analysis.” Id. at 32.

Our standard of review in the consideration of a trial court ’ s denial of a

motion for a new trial is as follows:

When assessing the trial court’ s denial of a motion for new trial

, we apply a deferential standard of review

. The decision whether

to grant or deny a new trial is one that lies within the discretion

of the trial court. We will not overturn such a decision unless the

trial court grossly abused its discretion or committed an error of

law that controlled the outcome of the case. Upon r eview, the

test is not whether this Court would have reached the same result

_________________ __________ ______ ____ _______

7 Id. at 28.J

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on the evidence presented, but, rather, after due consideration of

the evidence found credible by the trial court, and viewing the

evidence in the light most favorable to the verd ict winner, whether

the court could reasonably have reached its conclusion.

B & L Asphalt Industries, Inc. v. Fusco

, 753 A.2d 264, 267 (Pa. Super.

2000) (internal citations and quotation marks omitted). Moreover, o ur

standard of review regardi ng admission of evidence at trial is well

- established:

The admission or exclusion of evidence is within the sound

discretion of the trial court, and in reviewing a challenge to the

admissibility of evidence, we will only reverse a ruling by the trial

court upon a showing that it abused its discretion or committed

an error of law. Thus our standard of review is very narrow.... To

constitute reversible error, an evidentiary ruling must not only be

erroneous, but also harmful or prejudicial to the complainin g

party.

McManamon v. Washko

, 906 A.2d 1259 (Pa. Super. 2006) (internal

citations and quotation marks omitted). 8

With respect to expert witnesses, t he Pennsylvania Rules of Evidence

provide, in pertinent part:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if:

(a) the expert’ s scientific, technical, or other specialized

knowledge is beyond that possessed by the ave rage layperson;

_________________ __________ ______ ____ _______

8 “ An abuse of discretion is not merely an error of judgment, but if in reaching

a conclusion the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias or ill will,

as s hown by the evidence or the recor d, discretion is abused.” Cigna Corp.

v. Executive Risk Indem., Inc.

, 111 A.3d 204, 211 (Pa. Super. 2015).J

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(b) the expert’ s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence or

to determine a fact in issue; and

(c) the expert’ s methodolo gy is generally accepted in the relevant

field.

Pa.R.E. 702.

Our standard of review in cases involving the admission of expert

testimony is broad: “Generally speaking, the admission of expert

testimony is a matter left largely to the discretion of the trial court,

and its rulings thereon will not be re versed absent an abuse of

discretion.” Commonwealth v. Brown

, 408 Pa. Super. 246, 596

A.2d 840, 842 ( [Pa.Super.1991), appeal denied

, 5 32 Pa. 660, 616

A.2d 982 (1992) (quoting Palmer v. Lapp

, 392 Pa. Super. 21,

572 A .2d 12, 15

- 16 (Pa.Super.1990)). An expert’ s testimony is

admissible when it is based on facts of record and will no t cause

confusion or prejudice. Brown, supra

.

Commonwealth v. Watson , 945 A.2d 174, 176 (Pa. Super. 2008). 9

We note Kochmer relies on Rule 4003.5

, which provides, in relevant

part:

(a) Discovery of facts known and opinions held by an expert,

otherwise discoverable under the provisions of Rule 4003.1 and

acquired or developed in anticipation of litigation or for trial, may

be obtained as follows:

(1) A party may through interrogatories require

(A) any other party to identify each person whom the

other party expects to call as an expert witness at trial

and to state the subject matter on which the expert is

expected to testify [.]

_________________ __________ ______ ____ _______

9 “ The admission of opinion evidence by experts, however, has never been

held to take away from the jury its power and duty to determine the

evidentiary fa cts.” Brueckner v. City of Pittsburgh

, 84 A.2d 197, 199 (Pa.

1951).J

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-

Pa. R.C.P. No. 4003.5

Here, the trial court found the following:

This argument is baseless, where as here, Mr. Kochmer himself

admitted that he did move his feet and he did turn toward the

vehicles on his left. The first impact was on the left side of his

body. Whether Mr. Kochmer fell or stumbled or walked into the

truck was assessed by the jury. The accident reconstruction

expert was well

- qualified to present his written report and trial

testimony. Miller v. Brass Rail Tavern, Inc.

, 664 A.2d 525, 528

(Pa. 1995).

Trial C ourt Opinion, 3/2/2017, at 11 (record citation omitted).

We agree with the trial court’s determination for several reasons. First,

we note Kochmer ignore s the fact that Lynch

, in both his report and at trial,

opined :

[T]he initial impact occurred to the left front fender of [Hopfner’s]

pickup truck.... So based on the determination, the impact

happened to the side of the vehicle. There had to be a lateral

force to cause

... a dent to that fender. And then that dent can

only occur from a side force. If th e truck is going straight, there

has to be some side component that causes that dent. The only

other way a side force could occur is from Mr. Kochmer moving

towards the truck.

N.T., 7/20 /2016, at 131

- 132

. Lynch did not need a mathematical calculation

to determine that since Hopfner’s truck was traveling straight on the road,

and there was a dent to the side of the vehicle, Kochmer must have been

moving towards Hopfner’s truck at the initial point of impact

. 10 This deduction

_________________ __________ ______ ____ _______

10 A different scenario would be present if the evidence that showed the

truck’s front bumper was dented, which would imply that Hopfner struck

Kochmer first as opposed to the opposite.J

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simply required an observation regarding the condition of the truck. Any

mathematical analysis regarding the initial impact would have been

immaterial.

Second, with respect to Lynch’s additional opinion that Kochmer was

already in a posture consistent with a stumble or fall at the point of initial

impact based on the laceration he received to the top of his head from hitting

the driver’s side mirror, 11 such an opinion also does not necessitate a

mathematical analysis. One could reasonably deduce that if Kochmer is 5 feet

7 inches and the top of the mirror is 4 feet 10 inches, then it is obvious

Kochmer had to have been in a less than erect standing posi tion when he hit

the mirror

.

With respect to both scenarios, the jury had enough concrete facts

,

including the other evidence presented at trial, to decide which party was

causally liable for Kochmer’s injuries and a mathematical analysis explaining

one of the impacts would not have affected the liability percentage to such a

degree that Kochmer was prejudiced

.

Additionally, we find Kochmer attempts to re

- weigh the evidence with

respect to his allegation that he was merely a trapped pedestrian, who had

slightly moved his feet to avoid traffic. 12 We decline to do so

. See Samuel

-

_________________ __________ ______ ____ _______

11 N.T., 7/19/2016, at 132

- 133.

12 See Kochmer’s Brief at 26

- 27.J

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-

Bassett v. Kia Motors Am., Inc. , 34 A.3d 1, 25

- 26 (Pa. 2011) (rejected

implicit invitation by petitioner to reweigh the evidence)

. Furthermore, i t

merits mention that Kochmer did not request special interrogatories with

respect to the verdict, which would have clarified the jury’s basis for finding

him 60% negligent. In addition to stumbling into the truck, the jury could

have als o determined he was negligent for crossing a busy street at night

and/or ingesting drugs before venturing outside. Kochmer incorrectly

assumes that his only fault was turning towards the truck.

Lastly, we note that w hile the trial court initially denied Kochmer’s pre

trial request for Lynch’s mathematical explanation, the court permitted

Kochmer to question Lynch regarding this issue on cross

- examination. See

N.T., 7/18/2016, at 39 (“You can just ask [Lynch] what kind of mathematical

analysis

– I’m still not really sure what difference it makes whether the mirror

hit the plaintiff or the bumper hit the plaintiff, but you can explain that to the

jury, not to me.”); see also N.T., 7/20/2016, at 94 (“[Y]ou can cross

examination [sic] Mr. Lynch and say why di dn’t you put [the numbers] in your

report. What’s the matter with your report? What numbers are you basing it

on? You can do that

. ”).

During Lynch’s cross

- examination, the following exchange took place

between Kochmer’s counsel and the expert:

Q. Am I reading this correctly? This is your report with the typos

that you did n’t see. Let’ s see what you say about the calculations.

Tell me if I’ m reading this correctly : “ It was claimed that the initial

impact between Mr. Kochmer’ s body and the left front f ender ofJ

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the pickup truck caused Mr. Kochm er’ s body to spin around and

be positioned in an orientation that placed his head at the height

of the dri ver’ s side mirror. However, the mathematical analysis,

utilizing the geometry of the pickup truck, along w ith its speed at

impact, indicates that the initial impact with Mr. Kochmer and the

left front fender initiated

– I’ m sorry. Let me read the second

sentence again. “ However a mathematical analysis utilized in the

geometry of the pickup, along with its s peed at impact, indicates

that had the initial impact between Mr. Kochmer and the left front

fender initiated the fall, his head would have dropped less than

two inches from the point of impac t to the point where the driver’ s

side mirror would pass by Mr. Kochmer ’ s body as it traveled

through the intersection.”

Did I read that correctly?

A. Yes.

Q. So what you’re saying is, now it’ s physics. You are saying

based on your analysis utilizing physics, that Mr. Kochmer had to

be moving into the truck, right?

A. The physics analysis

--

Q. Is that a yes or no is that it?

[Defense counsel] : Your Honor

--

[Lynch] : There is two different analyses here.

. . . .

[Plaintiff’s counsel] : Your Honor, I really don ’ t want a speech.

[Defense counsel] : But if he asked a question, and he doesn ’ t

give an an swer. He is entitled to give an answer.

THE COURT : I t ’ s a yes or no. He hasn ’ t said either one. You can

say yes or no and then explain. But on cross

- examination, it ’ s a

yes or no answer.

BY [Plainti ff’s counsel] :J

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Q. Mr. Lynch, very s imple, what you just said there means that

my client was moving into the truck?

A. Yes, the dent on the fender.

Q. Yes?

A. Yes, correct.

Q. In your report you said that that ’ s based on that mathematical

analysis, right?

A. No. That ’ s not what I say in my report. There is two different

analyses there, and they are combined into one. Would you like

me to explain?

Q. Do you use the word “ mathematical ” here?

A. That ’ s a separate analysis in the dent analysis.

Q. There is also a physics analysis?

A. The dent is physics. This issue of whether or not his head

could have come in contact with the mirror based on the initial

impact with the front fender, is a mathematical analysis.

Q. Ho w long is your report along with the typos?

A. Twelve pages.

Q. Where is the mathematical analysis?

A. I have a page showing the mathematical analysis. I can show

and explain to the jury as well.

Q. Did you include it in your report?

A. I didn't feel it necessary to put every single calculation in the

report. I put the conclusions in the report.

Q. This is your

-- how many litigation cases where you’ ve come

to court and testified?

A. Fifth time testifying at trial, correct.J

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Q. And you [have ] written investigation reports other than those

five times, correct?

A. Correct.

Q. And you know that this is the report, this 12

- page report, is

the one that the plaintiff ’ s get, right?

A. I do.

Q. And your mathematical analysis, your physical an alysis,

whatever you want to call the numbers, that leads you to your

opinion that my client walked into the truck, they ain ’ t in here, are

they?

A. Again, you're combining two different

– the conclusion of Mr.

Kochmer walking into the truck is based on the dent. This

mathematical analysis has to do with whether or not

-- if that

impact occurred to left front fender, he would have had to be in a

less than erect position at impact in order for his head to be

positioned where that driver ’ s side mirror was for the head.

Q. Did you send Mr. DeLuca that mathematical analysis?

A. No.

Q. You ’ ve got it with you, right?

A. I do.

Q. It’ s not in the 12

- pages, right?

A. I did not outline every single mathematical calculation.

Q. Did you outline any?

A. I put the conclusions in my report.

Q. But again, it ’ s a fact that that dent was on the side

-- I mean

obviously if the dent is truly on the side, obviously, the motion

must have been towards it, right?

A. Correct.J

- S79001

- 17

- 18

-

Q. In fact, you don’ t even have to be a physicist to know that.

That ’ s common sense, right

A. You can reach the conclusion as well as I can if you have a

little bit of a physicist background.

N.T., 7/20/2016, at 150

- 154. A review of this testimony reveals c ounsel’s

challenge was to the weight of the evidence and not the expert’s credibility.

In summary , t he record supports the trial court ’ s analysis, and the court

did not abuse its discretion in admitting Lynch’s accident reconstruction expert

testimony

. Kochmer’s various arguments on appeal do not persuade us to

reach another conclusion.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/20/18