1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-15-1995

Williams v Rene

Precedential or Non-Precedential:

Docket 95-7226

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Recommended Citation

"Williams v Rene" (1995). 1995 Decisions. Paper 289.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/289
1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

____________ 

No. 95-7226 

____________ 

ANTONIO WILLIAMS 

V. 

JOSEPH RENE; ESSO VIRGIN ISLANDS, INC. 

 Scott Drake; John Doe, 

 Third-party Defendants

 Esso Virgin Islands, Inc., Appellant

____________ 

APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS 

Division of St. Croix 

(D.C. No. 91-cv-00231) 

____________ 

Argued August 16, 1995 

Before: STAPLETON, LEWIS and WEIS, Circuit Judges

 Filed November 15, l995 

____________ 

Robert T. Lehman, Esquire (ARGUED) 

Arthur H. Jones, Jr., Esquire 

Archer & Greiner 

A Professional Corporation 

One Centennial Square 

Haddonfield, New Jersey 08033 

Douglas L. Capdeville, Esquire 

2107 Company Street, Lot #4 

Christiansted, St. Croix 

U.S.A. Virgin Islands 00820-4918 

Attorneys for Appellant

Lee J. Rohn, Esquire (ARGUED) 

Maurice J. Cusick, Esquire 

Rohn & Cusick 

1101 King Street 
2 

Christiansted, St. Croix 

U.S.A. Virgin Islands 00820 

Linda Morgan, Esquire 

P.O. Box 3530 

Christiansted, St. Croix 

U.S.A. Virgin Islands 00820 

Renee D. Dowling, Esquire 

P.O. Box 1047 

Christiansted, St. Croix 

U.S.A. Virgin Islands 00821 

Attorneys for Appellee

WEIS, Circuit Judge. 

 In this Virgin Islands automobile accident case, 

evidence that an employee was driving a company car for his own 

convenience, together with a presumption of vicarious liability 

on the part of the employer, raised a question for the jury to 

resolve. Because the trial court granted a partial judgment as a 

matter of law against the employer on the respondeat superior

issue, we will reverse and remand for a new trial. 

 For guidance on the retrial, we note that an 

unsupported opinion by an actuarial expert on the plaintiff's 

future earnings should not be received into evidence. We also 

conclude that the failure of defense counsel to advise the 

plaintiff's lawyer of an interview with an attending physician is 

not an adequate ground to exclude that doctor's testimony. 

 Plaintiff Antonio Williams was injured on St. Croix, 

Virgin Islands on December 12, 1990 when his pickup truck 

collided with an automobile owned by defendant Esso and operated 

by Joseph Rene, one of its employees. Williams sued both Esso 
3 

and Rene in the District Court of the Virgin Islands. At the 

conclusion of the evidence at the trial, on the plaintiff's 

motion, the court dismissed Rene from the case. The jury then 

awarded plaintiff a verdict of $4.5 million against Esso. The 

district court denied Esso's post-trial motions. Williams v. 

Rene, 886 F. Supp. 1214 (D.V.I. 1995). 

 Esso had assigned the automobile in question to the 

position held by one of its employees, Helen Sia. In carrying 

out her duties as a sales representative, Sia traveled frequently 

to visit various customers in the Virgin Islands. Esso permitted 

her to take the company car home after work and to use it for 

personal matters. 

 Sia's office was located about a quarter of a mile from 

the St. Croix Airport Terminal and was separated from it by the 

"Esso Yard." On some occasions, she would drive from her home to 

the airport terminal to meet with customers. At other times, she 

would travel directly from her residence to her office. If it 

became necessary during the work day to go to the airport 

terminal, Sia would either walk, drive the company car, or be 

"shuttled" by another Esso employee who might be available. 

 On the evening of December 11, 1990, the day before the 

accident, Sia drove the company car to her home with a passenger, 

her co-employee Rene, whose own vehicle had broken down. When 

they arrived at Sia's residence, she turned the car over to Rene, 

who then drove it to his home, some distance away. The 

understanding was that Rene would return the automobile to Sia at 

her home the following morning. She would then drive to the 
4 

airport for a business appointment there, dropping Rene off at 

his job site. 

 Rene was a crew leader in the Esso group that refueled 

planes at the St. Croix Airport. He was not Sia's supervisor nor 

did she supervise him. No supervisory person authorized Rene to 

drive the car on this occasion. 

 The accident occurred not long after Rene left his 

home, between 6:45 a.m. and 7:00 a.m., and while he was en route 

to Sia's home. The record does not disclose when Sia and Rene 

were to report to work, but it may be assumed that the starting 

times were after the hour at which the accident occurred. 

 At the close of the evidence, the trial court granted 

the plaintiff's motion for a partial judgment as a matter of law, 

holding Esso responsible under respondeat superior principles. 

Plaintiff also moved to dismiss Rene as a defendant "conditioned 

on the granting of the motion for respondeat superior and . . . 

seek its damages solely from Esso as a result of its employee in 

the course and scope of his employment." That motion was also 

granted and the case went to the jury with Esso as the sole 

defendant. 

 Defendant appealed, asserting that the district court 

erred in granting judgment as a matter of law on the agency issue 

and in failing to grant a remittitur or order a new trial because 

of the excessiveness of the verdict. 

I. 

 The plaintiff's theory of liability against Esso is 

based on respondeat superior, that is, that an employer is 
5 

responsible for the negligence of its employees that occurs 

within the course and scope of their employment. The employer's 

liability is vicarious and secondary to that of the employee, 

which is primary. The relationship was explained in Builders 

Supply Co. v. McCabe, 77 A.2d 368, 370 (Pa. 1951): "[T]he person 

primarily liable is the employee or agent who committed the tort, 

and the employer or principal may recover indemnity from him for 

the damages which he [the employer] has been obliged to pay." 

Accord Sochanski v. Sears, Roebuck & Co., 689 F.2d 45, 50 (3d 

Cir. 1982); Tromza v. Tecumseh Prods. Co., 378 F.2d 601, 605 (3d 

Cir. 1967). The Restatement (Second) of Agency is in agreement. 

Section 401 comment (d) reads, "a servant who, while acting 

within the scope of employment, negligently injures a third 

person, although personally liable to such person, is also 

subject to liability to the principal if the principal is thereby 

required to pay damages." See also Restatement of Restitution 

§ 96 (1937). 

 Throughout the litigation, the parties seemed to assume 

that the liability of Esso and Rene was joint and several. This 

misunderstanding of the fundamental nature of Rene's primary 

responsibility led to a number of errors during the proceedings. 

For example, in her opening remarks to the jury, the plaintiff's 

counsel said ". . . if Mr. Rene was operating that vehicle in the 

course and scope of his employment, then his employer is the one 

who's responsible to pay the damages and that's Esso. And the 

law says if Mr. Rene was not in the course and scope of his 

employment, then Mr. Rene is liable for those damages." 
6 

 These comments, of course, are a misstatement of the 

law. Rene, as the primary tortfeasor, would be liable in any 

event for his negligence in causing the accident without regard 

to whether Esso was secondarily liable. Esso would be 

responsible only if Rene were negligent and his conduct occurred 

during the course and scope of his employment. Esso's liability 

would be vicarious only, but Rene's conduct would be the sole, 

active negligence that caused the accident. 

 We turn then to the scope of employment issue. Because 

the Restatements furnish the guiding common law in the Virgin 

Islands, we look to sections 228 and 229 of the Restatement 

(Second) of Agency. V.I. Code Ann. tit. 1, § 4 (1967). 

 Restatement section 228(1)(a),(b) provides that conduct 

of a servant is within the scope of employment if it is the kind 

he is employed to perform and it occurs substantially within the 

authorized time and space limits. Section 228(2) states that 

conduct is not within the scope of employment if it is "too 

little actuated by a purpose to serve the master." 

 Comment d to section 229 is particularly pertinent 

here. It discusses the "going to and from work" situation and 

notes the importance of ascertaining "whether the vehicle is 

supplied primarily for the purpose of assisting the [employer's] 

work, or for the purpose of assisting the employee to perform 

what is essentially his own job of getting to . . . work." Simply 

because the employer provides a vehicle "does not establish that 

those who avail themselves of it are within the scope of 
7 

employment while upon it, especially if the use is merely 

casual." Id. 

 The general rule is that employees are not within the 

scope of their employment while traveling to and returning from 

work. That principle was recognized by the Territorial Court of 

the Virgin Islands in McFarlane v. Jones Masonry, 25 V.I. 43 

(Terr. Ct. 1990). See also Charles v. Mitchell, 21 V.I. 478 

(D.V.I. 1985). There may be some circumstances that take a case 

out of the general rule, for example, when there are express 

instructions by the employer or when the trip serves some 

specific purpose of the employer other than merely providing for 

the presence of the employee at the work place. See, e.g., 

Caldwell v. A.R.B., Inc., 222 Cal. Rptr. 494, 498 (Cal. Ct. App. 

1986). 

 In Pacheco v. United States, 409 F.2d 1234, 1237 (3d 

Cir. 1969), we held that, generally speaking, proof of a 

defendant's ownership of a vehicle and of its operation at the 

time of the accident by an agent of the defendant creates a 

presumption that the driver was acting within the scope of 

employment. As we indicated in the opinion, that presumption is 

rebuttable. Id. 

 Federal Rule of Evidence 302 provides that the effect 

of a presumption is determined by state law whenever it supplies 

the rule of decision on a claim. Assuming, without deciding, 

that the Virgin Islands statute on presumptions, V.I. Code Ann. 

tit. 5, § 812 (1967), governs here, Esso had the burden of 
8 

proving that Rene was not acting within the scope of his 

employment once plaintiff established the Pacheco presumption. 

 The standard of review for the grant of a motion for 

judgment as a matter of law varies according to whether the 

moving party has the burden of proof. Fireman's Fund Ins. Co. v. 

Videfreeze Corp., 540 F.2d 1171, 1177 (3d Cir. 1976). Because 

Esso had the burden of proof on the respondeat superior issue, 

the grant of the plaintiff's motion can be sustained "only if, 

viewing the evidence in the light most favorable to the nonmoving party, there is no question of material fact for the jury, 

and any verdict other than the one directed would be erroneous 

under the governing law." Tait v. Armor Elevator Co., 958 F.2d 

563, 569 (3d Cir. 1992) (quoting Macleary v. Hines, 817 F.2d 

1081, 1083 (3d Cir. 1987)). 

 The record in this case contains ample evidence to 

rebut a Pacheco presumption. Rene's employment at the airport 

was not the type of job that required travel by automobile over 

the Island. Rene left his home between 6:45 and 7:00 a.m. The 

collision occurred shortly thereafter, apparently before he was 

to report for work at the airport. At the time of the collision, 

he was en route to Sia's home to turn the car over to her. Sia, 

a co-employee, had furnished the car as a favor to Rene to get 

him from her home to his and back. No one in a supervisory 

position at Esso had authorized or directed Rene to use the car 

on the day of the accident, or to pick up Sia. 

 Plaintiff produced some evidence that, at various times 

in the past, some of Esso's employees had been authorized during 
9 

working hours to drive to employees' homes in order to bring them 

to the work place. That testimony was general and did not 

establish a clear policy, nor did it demonstrate that Rene had 

been directed to bring Sia to work. In this context, it is 

important to note, as the Restatement points out, the distinction 

between an employer's permission to drive a company car for 

personal errands and directions for the use of the automobile on 

the employer's business. The mere fact that Esso had allowed its 

employees to use its vehicles to bring other employees to work in 

the past did not establish that Rene was within the scope of 

employment. 

 Although plaintiff was entitled to a Pacheco

presumption, there was adequate evidence to support a finding 

that Rene was using the automobile for his own personal 

convenience and not on the business of Esso. Consequently, the 

respondeat superior question should have been submitted to the 

jury. It was error, therefore, to grant judgment against Esso on 

the vicarious liability issue. Accordingly, a new trial must be 

granted. 

 At this juncture, the question arises whether the new 

trial should be granted only as to liability without vacating the 

damage award. In Gasoline Prods. Co. v. Champlin Refining Co., 

283 U.S. 494 (1931), the Supreme Court held that even if error as 

to one issue requires a new trial, it need not include other 

separate points that were properly decided. If the issue of 

damages, however, is so intertwined with liability that one 

cannot be submitted to the jury independently of the other 
10 

without confusion and uncertainty, then a new trial must extend 

to all issues. Id. at 500-01. Accord Simone v. Golden Nugget 

Hotel & Casino, 844 F.2d 1031, 1040 (3d Cir. 1988); Vizzini v. 

Ford Motor Co., 569 F.2d 754, 759 (3d Cir. 1977); see also Fed. 

R. Civ. P. 59(a). 

 This appeal presents a unique circumstance that has a 

bearing on the appropriate scope of a new trial. The district 

court granted the plaintiff's request to dismiss defendant Rene 

just before the case was submitted to the jury. The dismissal 

was conditional, that is, dependent on a judgment as a matter of 

law against Esso on the respondeat superior issue. The situation 

thus created may fairly be said to come within the purview of a 

comment in a leading treatise: "When fewer than all defendants 

are dismissed voluntarily, . . . the court retains plenary power 

to reinstate those defendants until the claim has been 

adjudicated as to the remaining defendants." 9 Charles A. Wright 

& Arthur R. Miller, Federal Practice and Procedure § 2367 at 323 

(1995). 

 Because the respondeat superior ruling must be set 

aside, so too must Rene's dismissal be vacated. The district 

court acquiesced in the limited effect of the plaintiff's motion, 

and it would be inappropriate, as well as unfair, to hold at this 

point that Rene would no longer be a party. We therefore direct 

that Rene be reinstated as a defendant. 

 Having concluded that Rene will be a party on the 

retrial, we must consider what effect that factor will have on 

the remaining issues. It is significant that the jury reached 
11 

its verdict on negligence and damages at a time when Rene was no 

longer a defendant in the case. On retrial, it may be that the 

jury will exonerate both Esso and Rene, or perhaps, leave Rene to 

bear full responsibility for the plaintiff's damages. In view of 

those possibilities, it would be inequitable to have Rene bound 

by a negligence finding or a damages assessment that a jury might 

not have rendered had it been aware that he was to be the sole, 

primarily-responsible defendant. 

 We need not blind ourselves to the fact that juries are 

apt to assess larger verdicts against major corporations than 

against individuals. Indeed, the plaintiff's ploy in dismissing 

Rene from the suit was clearly intended to focus the jury's 

attention on the deep pocket defendant, Esso. In the 

circumstances here, the new trial must extend to all parties and 

to damages as well as liability. 

II. 

 Because we have decided that a new trial must include 

damages, we need not discuss at any length the defendant's 

contention that the verdict was excessive. However, guidance on 

some matters that may recur on the retrial may be helpful. 

 About a month and a half after the accident, plaintiff 

returned to his job as a first class mechanic at the Virgin 

Islands Water and Power Authority. He continued to work there 

until shortly before the trial began. In early 1992, plaintiff 

applied for, and received, a promotion to preventive maintenance 

supervisory foreman, a position that paid approximately $44,000 

per year. That was a substantial increase over the $30,000 he 
12 

received in 1991. His earnings in 1992 were approximately 

$35,000, but the record does not disclose what part of that sum 

included the higher pay for the supervisory position. 

 At trial, the plaintiff's actuarial expert, assuming 

plaintiff would be permanently disabled, projected his gross loss 

of income to be approximately $2 million. This calculation took 

into account both anticipated earnings and projected inflation to 

arrive at an annual increase of 5% over the plaintiff's current 

earnings. The witness reduced the $2 million figure to its 

present value of approximately $750,000. 

 In responding to a question from the plaintiff's 

counsel on redirect examination, the expert said that, based on 

actual earnings from 1991 through 1993, the average increase in 

income was 16.1% annually, more than three times higher than the 

5% figure that he had used in projecting the gross earnings loss. 

Counsel then stated: "So instead of two million, you would have 

a number of six million dollars, is that right?" The expert 

replied, "Yes, ma'am, or close to it." 

 Two serious deficiencies undermine that testimony of 

counsel and expert. There was no evidence on which the witness 

could properly base an opinion that the plaintiff's gross 

earnings would triple in the remaining seventeen years of his 

service before retirement. The record contains no data on the 

salary scales at the Water and Power Authority and nothing to 

indicate that the plaintiff's experience and training would 

qualify him for positions higher than the one he held at time of 

trial. See Benjamin v. Peter's Farm Condominium Owners Ass'n, 
13 

820 F.2d 640, 642 (3d Cir. 1987) (requiring evidence to justify 

prospective earnings); Gumbs v. International Harvester, Inc., 

718 F.2d 88, 98 (3d Cir. 1983) (same). The 16% average increase 

primarily was the result of the warping of the earnings record 

brought about by the substantial promotion from mechanic to 

supervisory foreman. Moreover, at no time was the $6 million 

projection reduced to present worth, an obligation that plaintiff 

must shoulder. See Gorniak v. National R.R. Passenger Corp., 889 

F.2d 481, 486 (3d Cir. 1989). 

 The $6 million figure apparently had an appreciable 

influence on the size of the verdict. In his post-trial opinion 

reviewing the damage award, the trial judge commented: "Plaintiff 

presented evidence . . . that Mr. Williams' economic damages 

alone might be estimated at almost 6 million dollars." Williams, 

886 F.Supp. at 1239. "If the jury believed this testimony, then 

the entire $4.5 million dollar award is actually lower than the 

evidence revealed in the record of Mr. Williams' maximum economic 

damages. If they believed this testimony, it is possible that 

they came up with the $4.5 million award without even considering 

any damages for pain and suffering. It is quite likely that the 

jury did believe plaintiff's evidence since it was essentially 

unrebutted by the defendants." Id. at 1241.1

 

1Because he concluded that the loss of income made up such a 

large part of the award, the trial judge did not deem it 

necessary to review other cases involving similar injuries to 

determine the reasonableness of amounts awarded for pain and 

suffering. See Gumbs v. Pueblo Int'l, Inc., 823 F.2d 768 (3d 

Cir. 1987); Couch v. St. Croix Marine Inc., 667 F.Supp. 223 

(D.V.I. 1987); Erysthee v. El Nuevo Lirio Grocery, 25 V.I. 307 

(D.V.I. App. Div. 1990). Such comparisons do provide some 
14 

 Because of its misleading character, such unsupported 

and speculative expert testimony should not be received into 

evidence on the retrial. 

 Another ruling that requires some comment was the 

exclusion of the testimony of Dr. Walter Pedersen, the 

plaintiff's attending physician. Before the trial commenced, the 

court ruled in limine that defendant could not call the physician 

as a witness. Dr. Pedersen had treated plaintiff after the 

accident and submitted a report to the plaintiff's attorney. She, 

in turn, sent a copy to the defendant's counsel. About two years 

later, in the final pretrial order, plaintiff submitted a list of 

witnesses he proposed to call. Dr. Pedersen's name was not 

included. The defense, however, as part of its pretrial 

submission, listed Dr. Pedersen as a fact witness in its case. 

 After receiving the plaintiff's witness list, the 

defendant's counsel met with Dr. Pedersen. Plaintiff had 

previously executed a broadly-worded medical information release 

that would permit such an interview. Defense counsel did not 

tell the plaintiff's lawyer of his intention to discuss the 

plaintiff's injury with the physician. 

 The trial court based its exclusionary ruling on three 

grounds: 

 (1) despite local practice, defense counsel had failed 

to notify the plaintiff's lawyer of the interview; 

 

guidance for courts in considering whether a verdict is excessive 

and we commend the use of such data. 
15 

 (2) the defense proposed to elicit expert opinion 

evidence from Dr. Pedersen although he had been listed in its 

pretrial submission as a fact witness; and 

 (3) Dr. Pedersen had not submitted a report of his 

opinion to plaintiff as required by Fed. R. Civ. P. 26(b)(4)(B). 

 In DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 

1193, 1201-02 (3d Cir. 1978), we discussed the factors that must 

be assessed in excluding a witness's testimony because of failure 

to comply with pretrial notice requirements: 

 1. the prejudice or surprise in fact to the opposing 

party; 

 2. the ability of that party to cure the prejudice; 

 3. the extent to which the orderly and efficient 

trial of the case would be disrupted; and 

 4. bad faith in failing to comply with the court's 

order. 

In addition, the significance of the practical importance of the 

excluded evidence must be taken into consideration. Id. at 202. 

See also Johnson v. H.K. Webster, Inc., 775 F.2d 1, 8 (1st Cir. 

1985); Stich v. United States, 730 F.2d 115, 118 (3d Cir. 1984). 

 We find no evidence of surprise to plaintiff in the 

rather unusual situation present here. Plaintiff had previously 

obtained a report from Dr. Pedersen, and we may assume that he 

had been interviewed by the plaintiff's counsel. There was no 

indication that the trial would have been disrupted by receiving 

the physician's testimony. 
16 

 The trial court apparently felt bound by a local policy 

articulated by the Territorial Court in Chase v. People's Drug 

Store, 24 V.I. 183, 187 (Terr. Ct. 1989), which required the 

plaintiff's counsel to be notified before a defense lawyer 

interviewed an attending physician. Dismissing the written 

authorization to release medical information, the district court 

noted that despite similar waivers in Chase, the Territorial 

Court adopted the practice of a New Jersey case, Stempler v. 

Speidell, 495 A.2d 857 (N.J. 1985). Stempler required prior 

notification to the plaintiff's counsel before defendant could 

interview an attending physician. 

 We have reservations about the restrictions imposed in 

Stempler and believe the better approach is expressed in 

International Business Mach. Corp. v. Edelstein, 526 F.2d 37 (2d 

Cir. 1975). There, the court referred to "time-honored and 

decision-honored principles, namely, that counsel for all parties 

have a right to interview an adverse party's witnesses (the 

witness willing) in private, without the presence or consent of 

opposing counsel and without a transcript being made." Id. at 

42. We are concerned that the Chase holding hinders settlement 

negotiations and trial preparation by restricting the gathering 

of relevant evidence in an informal fashion, thus requiring the 

more expensive and time-consuming procedures of a formal 

deposition. 

 Furthermore, by putting his physical condition at 

issue, plaintiff waived the physician-patient privilege with 

respect to the injuries claimed to have been incurred in the 
17 

accident. See 5 V.I. Code Ann. tit. 5, § 855(4) (1967); Fed. R. 

Evid. 501. 

 In any event, even failure to follow the Chase

procedure would not provide sufficient cause to bar Dr. 

Pedersen's testimony in this case where plaintiff had received a 

report from the physician and had decided not to call him as a 

witness. The 1970 Advisory Committee report to Fed. R. Civ. P. 

26(b)(4) noted that for discovery purposes, an expert witness who 

was an actor or viewer of the occurrence that is the subject 

matter of the lawsuit should be treated "as an ordinary witness." 

That same viewpoint is applicable here in the trial setting. 
18 

 The significance of Dr. Pedersen's testimony is 

apparent from the dispute over whether the plaintiff's back 

condition was caused solely by the automobile accident in 1990. 

Our review of the trial record reveals references to previous 

injuries to the plaintiff's lower back in 1969, 1975, 1978, 1980, 

1981, 1982 (two incidents), 1983, and 1986. In 1990, shortly 

before the accident in this suit, he also had an x-ray of the 

lower back. 

 Dr. Pedersen treated plaintiff for some of these 

previous injuries as well as those incurred in the auto accident 

in December of 1990. The extent of the plaintiff's disability 

caused by the pre-existing injuries and that portion attributable 

to the Rene collision are crucial in the determination of a 

proper damage award. It seems likely that Dr. Pedersen's 

testimony would be helpful to making an evaluation on causation, 

and he should be permitted to testify at the retrial. Of course, 

the trial court may require the defense to produce, in advance of 

trial, a report by Dr. Pedersen of any additional matters, 

including opinions that he intends to testify about, that had not 

been included in any previous reports to, or interviews with, the 

plaintiff's counsel. 
19 

 Because other evidentiary matters raised by the defense 

may be obviated on the retrial, we do not address nor decide them 

at this juncture. 

 The judgment of the district court will be reversed and 

the case remanded for a new trial. Costs to abide the event. 

___________________________________