APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 74-421).
Seitz, Chief Judge, Gibbons and Weis, Circuit Judges. Weis, Circuit Judge, concurring and dissenting.
Defendant ("Ford") in this diversity action under Pennsylvania's Wrongful Death and Survival Statutes appeals a judgment based on a jury's verdict in plaintiff's favor. Vizzini v. Ford Motor Co., 72 F.R.D. 132 (E.D. Pa. 1976).
Salvatore Vizzini (Vizzini), late husband of plaintiff, died in a one-vehicle accident at approximately 12:30 p.m. on Saturday, September 1, 1972. Vizzini was killed on impact when his 1972 Ford F-100 pickup truck skidded through the "T"-type intersection of two rural roads near his vacation home in Seabreeze, New Jersey, and struck a tree. The skid marks on the macadam road were measured at 363 feet in length, and were in a nearly straight line. The marks were left by the tires on only one set of wheels. The marks were almost entirely on the wrong side of the road. When Vizzini was found, he was protruding from the waist up out of the driver's side door window. Although the truck was equipped with lap-type safety belts, when found, Vizzini was not wearing a safety belt.
Vizzini had worked at his job as a trouble-shooter for the Philadelphia Electric Co. the entire day and night preceding the accident, i.e., from 8:00 a.m. Friday, August 31, straight through until 8:00 a.m. Saturday, September 1. His son then drove him from his suburban Philadelphia home to Seabreeze, New Jersey, where the family had a vacation cottage. During the 28 or so hours preceding his death Vizzini only had short naps which were taken during the drive to Seabreeze, a trip that took approximately 2 1/4 hours.
Vizzini remained at this vacation home for about 1 1/2 hours before he left on his fatal ride. During that time he drank three bottles of beer. The autopsy revealed a blood alcohol concentration of .168, in excess of the percentage required for a presumption of intoxication under both Pennsylvania and New Jersey law. After drinking the beer, Vizzini left the cottage driving the F-100 pickup, and shortly thereafter was involved in the accident in which he died. There was no witness. The day of the accident was sunny, dry, and clear, and the road was free of hazards and obstructions.
Vizzini's wife, administratrix of his estate, then brought this action against Ford. Her complaint alleged negligence in the manufacture of the truck or, in the alternative, that the truck was defective and unreasonably dangerous under a strict liability theory. She based her claim upon a defect in the left front brake assembly that was discovered during post-accident inspections of the truck. She alleged that a self-adjuster cable in that brake assembly was negligently or defectively assembled in that it was not properly connected. As a result, she claimed, the left front brake shoe was unable to expand to compensate for wear, resulting eventually in failure of the brake which in turn caused the accident. Plaintiff also alleged that there was leakage of brake fluid from the master cylinder, and that such leakage contributed to the failure of the truck's brake. She asserted that the failure of the left front brake of her husband's truck was the proximate cause of her husband's death.
The case first was tried to a jury on the issue of liability. Plaintiff's expert gave his opinion that the accident had been caused by the failure of the truck's front brakes. Her experts further testified that such failure was caused by a defectively manufactured self-adjuster system, aggravated by the defective master cylinder. Ford's experts testified that the alleged defects could not have caused the accident, and Ford argued that the sole proximate cause of the accident was the negligence of Vizzini himself.
The jury's special verdict was in the form of answers to six interrogatories. The jury found Ford to have been negligent in the manufacture of the truck, and that such negligence was a proximate cause of the accident. It found Vizzini to have been negligent as well, and that his negligence was also a proximate cause of the accident. And it found that the truck was defective to the point of being unreasonably dangerous, and that such defect was a proximate cause of the accident.
A trial on the issue of damages was then held before the same jury. After hearing extensive evidence on plaintiff's damages claim, and after two full days of deliberation, the jury was unable to agree on damages. In a note to the court the jury explained that one juror was unable to agree with the others on a damage figure. The note indicated that the one holdout juror had compromised his or her earlier vote on liability in order to achieve unanimity on the first verdict, but had done so in the belief that the liability verdict as rendered would result in a "draw" with no damages assessed against either party. Accordingly, that juror was unable to agree with the others on the amount to be awarded plaintiff.
After ascertaining that the deadlock was indeed insoluble, the court declared a mistrial. It denied Ford's motions for judgment n.o.v. and for a new trial on liability as well as damages, and ordered a new trial limited to the issue of damages under the strict liability claim.
At that second trial on damages, plaintiff produced testimony, inter alia, concerning the deceased's income, expenses and employment history. Plaintiff also put an economist on the stand who testified that an employee in Vizzini's position at the time of his death could have expected to receive yearly pay increases of 3% per year, a figure the economist based on projected increases in national productivity. An actuary testified for plaintiff to the value of the various fringe benefits Vizzini was receiving as part of his compensation package, to his life expectancy, and to the value of his services as a husband and father. The actuary computed the present value of Vizzini's total lost future earnings using a 6% simple interest factor.
Ford objected to various aspects of plaintiff's evidence on damages. In addition, Ford's offer of proof concerning non-usage of safety belts by Vizzini was rejected by the court. The court also denied Ford's request that it be allowed to demonstrate the impact of taxes on Vizzini's future earnings. Ford presented no further evidence in rebuttal. The jury awarded plaintiff $421,000.00 under the Pennsylvania Survival Act, and $52,298.00 under the Pennsylvania Wrongful Death Act.
FORD'S MOTION FOR JUDGMENT NON OBSTANTE VEREDICTO
Ford on appeal seeks a reversal of the district court's refusal to grant its j. n.o.v. motion. The motion was based on the ground that the plaintiff failed to introduce adequate evidence that the allegedly defective self-adjuster cable caused Vizzini's accident. The trial judge also had denied Ford's earlier motion for a directed verdict. Though he characterized plaintiff's causation evidence as "very thin," 72 F.R.D. at 135, the trial judge did believe that sufficient evidence had been introduced to warrant submission of the question of causation to the jury.
Before deciding the merits of Ford's j. n.o.v. motion, we first must determine what standards are to guide this court in gauging the sufficiency of the evidence. The federal courts, as well as the commentators, have split over whether federal or state standards should control such determinations in diversity cases, see 9 C. Wright & A. Miller, Federal Practice & Procedure § 2525 (1971). This circuit, however, in cases applying Pennsylvania law, has found there to be "no difference in the standard followed in Pennsylvania courts and in the federal courts" on the question of "the quantum of evidence necessary to establish a jury question on the issue of causation," Kridler v. Ford Motor Co., 422 F.2d 1182, 1183-84 & 1183 (3d Cir. 1970). This court, therefore, when applying Pennsylvania law, has proceeded without distinguishing between the federal and Pennsylvania approaches. See Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1211-12 (3d Cir. 1970).
In Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205 (3d Cir. 1970), this court characterized the standard by which j. n.o.v. motions are evaluated under federal law as requiring "that we 'determine whether, as a matter of law, the record is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief,'" 422 F.2d at 1211-12, (footnote omitted), quoting Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir. 1969). The court in Neville also stated the Pennsylvania standard:
The Pennsylvania test, as stated in Smith v. Bell Telephone Co. of Pa., 397 Pa. 134, 153 A.2d 477 (1959) was summarized in Denneny as requiring "the trial judge [to] determine as a minimum requirement of a prima facie case whether the plaintiff has produced 'substantial evidence' of 'sufficient facts' having the capacity of supporting a logical conclusion." [footnotes omitted]
Our task, then, in evaluating Ford's motion for judgment n.o.v. is the same whether Pennsylvania or federal standards are applied. And since plaintiff has the benefit of the jury's verdict in her favor, in reviewing the district court's denial of Ford's motions "we must consider the evidence in the light most favorable to plaintiff, drawing all reasonable inferences in favor of the plaintiff and against the defendant," Kademenos v. Equitable Life Assurance Society of the United States, 513 F.2d 1073, 1074 (3d Cir. 1975). Accord, Moyer v. Ford Motor Co., 205 Pa. Super. Ct. 384, 386, 209 A.2d 43, 44 (1965).
Ford urges us to reverse the district court's denial of its j. n.o.v. motion on the ground that plaintiff failed to show sufficient evidence to prove any causal connection between the alleged defect in the self-adjuster cable of the truck's left front brake and the accident that killed Vizzini. Plaintiff, of course, even under a strict liability theory, must prove not only the existence of the defect but also that such defect was a proximate cause of the injury at issue. Cornell Drilling Co. v. Ford Motor Co., 241 Pa. Super. Ct. 129, 359 A.2d 822, 825 (1976). Ford argues that the expert upon whom plaintiff chiefly relied, Mr. Pruyn, offered only a conclusory assertion on causation. That assertion, Ford argues, was buttressed by no objective data supporting his theory that the weakness in the self-adjuster cable was capable of causing brake failure. No tests of similarly faulty cable, or of the cable in Vizzini's truck itself, were run by Mr. Pruyn. No treatises were cited to support his theory, no authorities offered for the assertion that an unconnected cable similar to that in Vizzini's truck could lead to brake failure.
Moreover, Ford argues that Mr. Pruyn's testimony was often inconsistent with important points of plaintiff's theory of the case. The brake pedal reserve and the evidence of residual braking action in the left front tire, both noted by Mr. Pruyn in his post-accident inspection of the truck, were inconsistent with the brake failure that plaintiff alleged occurred. Further, Ford's own test movies showed that the skid marks found at the scene of the accident were not consistent with those that would be expected to occur after front brake failure. Ford also points to inconsistencies in the testimony of plaintiff's witnesses concerning the number of wheels that left the skid marks, and concerning the alleged leakage from the master cylinder. And Ford argues that its own experts and tests demonstrated conclusively that the alleged defect did not cause the accident in which Vizzini died.
Ford relies on Moyer v. Ford Motor Co., 205 Pa. Super. Ct. 384, 209 A.2d 43 (1965), and Denneny v. Siegel, 407 F.2d 433 (3d Cir. 1969) to support its assertion that plaintiff's expert testimony was insufficiently supported by the facts to create a jury question on the issue of causation. In Moyer, however, plaintiff's only evidence in support of his theory that the accident at issue resulted from a "freezing up" of the front wheels was what the court called the "rather confused" testimony of an automobile mechanic who "had neither seen nor examined the damaged automobile" and who admitted there were several explanations for the accident, 205 Pa. Super. at 386-87, 209 A.2d at 44. The defendant in Moyer had produced two experts, one of whom had examined the car, and both of whom testified that the wheel had not frozen up.
Similarly, in Denneny the plaintiff offered the testimony of two experts to prove that her post-operative infection had been caused by the hospital's negligence in allowing into the operating room persons wearing unsterilized clothing. But one of plaintiff's experts had been unable to determine any cause for plaintiff's infection, while the other acknowledged that, had the infection been caused by non-sterile conditions, any number of factors other than the one alleged by plaintiff might have created those conditions. 407 F.2d at 436.
This case is different. Here plaintiff's experts were adequately qualified to testify as experts. They testified to a defect in the adjuster cable of the left front brake. There was credible evidence of leakage shortly before the accident from that master cylinder controlling the left front brake. Plaintiff introduced testimony that the skid marks at the scene of the accident were left by only the rear tires, thus supporting her theory that the front brake had not worked properly. She offered explanations for the presence of some braking power in the left front wheel after the accident. Moreover, plaintiff used some of the tests conducted by Ford itself, as well as admissions elicited on cross-examination of Ford's witnesses concerning the relationship of self-adjuster cable failure to brake failure, to bolster her case.
Viewing the record as a whole, and in the light most favorable to plaintiff's case, we cannot say as a matter of law that her case is "critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief," Neville Chemical Co., supra, 422 F.2d at 1211-12. Much of plaintiff's evidence is conflicting. Some of her witnesses were confused. But enough evidence was introduced to support plaintiff's causation claim, provided the jury chose to believe that evidence. The credibility of plaintiff's witnesses was for the jury. "It is not necessary . . . that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability. . . ." Smith v. Bell Telephone Co. of Pa., 397 Pa. 134, 138, 153 A.2d 477, 480 (1959). It was therefore not error to deny Ford's j. n.o.v. motion.*fn1
FORD'S MOTION FOR A NEW TRIAL AS TO ALL ISSUES
Ford seeks a reversal of the district court's denial of its motion for a new trial on the ground, inter alia, that it was inconsistent with the sound exercise of discretion for the trial judge to limit the second trial below to the issue of damages. Under Fed. R. Civ. Pro. 59(a) the trial court, in its sound discretion, may limit the grant of a new trial to only a portion of those issues litigated in the original proceeding, including the issue of damages only. 6A Moore's Federal Practice Para. 59.06 at 59-81 (1973). The trial court's decision to grant a limited new trial is reviewable by this court when that decision comes before us, as it does in this case, as part of an appeal from a final judgment. Springfield Crusher, Inc. v. Transcontinental Ins. Co., 372 F.2d 125 (3d Cir. 1967).
The standard of review of an order under Fed. R. Civ. Pro. 59(a) "is a matter of federal procedure and is, in no wise, subject to state practice," Silverii v. Kramer, 314 F.2d 407, 413 (3d Cir. 1963). Accord, 11 C. Wright & A. Miller, Federal Practice & Procedure § 2802 (1973). And the standard we apply on review is whether, viewing the circumstances as a whole, it was consistent with the sound exercise of discretion for the trial judge to limit the new trial to the issue of damages. Though the discretion of the trial judge is broad in such cases, it is not boundless.
We recognize, as we must, that a motion for a new trial . . . is addressed to the sound discretion of the trial judge and its denial is not ordinarily reviewable in the absence of a showing of exceptional circumstances such as an abuse of discretion. . . . There is an abuse of discretion within the meaning of the rule, when the ...