admissible "under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held." See, Wright, Law of Federal Courts, § 93 (3d ed. 1976). Thus, the court in Shane applied state procedural, rather than substantive, law in deciding the case. Former Rule 43(a) was superseded in 1975 by the Federal Rules of Evidence. See, Wright, Law of Federal Courts at 456-57.
None of the Federal Rules of Evidence or Civil Procedure pertain to the submission of exhibits to the jury. Accordingly, we are confronted with a situation similar to that addressed in Erie. There, the Supreme Court, in construing the "Rules of Decision Act," Judiciary Act of 1789, § 34, 1 Stat. 92, held that federal courts sitting in diversity cases are bound by state decisional as well as state statutory law when deciding questions of a substantive nature. See, Erie at 78, 58 S. Ct. at 822. Erie has been construed in subsequent case law to stand for the broader proposition that in diversity suits, federal courts are to apply state substantive law and federal procedural law. Hanna v. Plumer, 380 U.S. at 465, 85 S. Ct. at 1140. Substance-procedure distinctions are to be made with reference to the "twin aims of Erie : discouragement of forum shopping and inequitable administration of the laws." Id. at 465-68, 85 S. Ct. at 1140-42.
Variations in state and federal practice with regard to the submission of exhibits to the jury are not substantial and, in any case, are unlikely to influence the plaintiff's choice of forum. Accordingly, any rule governing the matter is clearly procedural and controlled by federal law.
The determination as to whether the jury will be permitted to take exhibits to their deliberation room lies within the sound discretion of the trial court. United States v. Gross, 451 F.2d 1355, 1359 (9th Cir. 1971); Murray v. United States, 76 U.S. App. D.C. 179, 130 F.2d 442, 444 (D.C.Cir.1942); Chuy v. Philadelphia Eagles Football Club, 431 F. Supp. 254, 268 (E.D.Pa.1977), aff'd, 595 F.2d 1265 (3 Cir. 1979); Green v. Philadelphia Gas Works, 333 F. Supp. 1398, 1405 (E.D.Pa.1971), aff'd, 478 F.2d 313 (3 Cir. 1973).
It follows, then, that the court may deny a request by counsel to send certain exhibits to the jury room for use during deliberation. United States v. Taylor, 480 F.2d 618, 619 (5th Cir. 1973). Such a denial does not constitute an abuse of judicial discretion absent a showing that the exclusion of evidence was prejudicial. See, Leathers v. United States, 471 F.2d 856, 863 (9th Cir. 1972); Murray v. United States, 130 F.2d at 444.
Here, the plaintiff has not shown the court how he was prejudiced but rather concludes that the fact that the jury returned a verdict against him on the liability issue confirms the importance of the exhibits. We do not agree.
The documents referred to by the plaintiff were introduced by plaintiff at trial, discussed during trial testimony and commented on in great detail by both plaintiff's and defendant's attorneys during their closing arguments to the jury. Only after the jury had retired to begin its deliberations, and the defendant's counsel had left the courtroom, did plaintiff's counsel make the request to the court to have the documents in question submitted to the jury in the jury room. Since defendant's counsel could not be located at that time, the court refused plaintiff's request.
Very shortly thereafter, the jury returned with its verdict. The jury never requested that it be provided with the exhibits during deliberation. Therefore, the court concludes that the jury understood the evidence and rendered its verdict accordingly. We thus hold that our denial of plaintiff's counsel's request to send plaintiff's exhibits to the jury room did not constitute an abuse of judicial discretion.
Plaintiff's second ground for a new trial is that this court erred in finding that Thomas P. Walsh was not qualified to give expert testimony on plaintiff's behalf.
Under Rule 702 of the Federal Rules of Evidence, which codifies the common law, an "(expert) witness must have such skill, knowledge and experience in the field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth." Jenkins v. United States, 113 U.S. App. D.C. 300, 307 F.2d 637, 643 (D.C.Cir.1962) (quoting McCormick, Evidence § 13 (1954) ). See also, Universal Athletic Sales Co. v. American Gym, Etc., 546 F.2d 530, 537 (3d Cir. 1976), cert. denied sub nom. Super Athletics Corp. et al. v. Universal Athletic Sales Co. et al., 430 U.S. 984, 97 S. Ct. 1681, 52 L. Ed. 2d 378 (1977).
The crucial factors with respect to admissability of "expert" testimony are the "actual experience of the witness and the probative value of his opinion." Jenkins v. United States at 647.
The law is well settled that "(t)he qualification of an expert is a matter peculiarly within the discretion of the trial judge." Arnold v. Loose, 352 F.2d 959, 962 (3d Cir. 1965) (quoting Trowbridge v. Abrasive Co. of Philadelphia, 190 F.2d 825, 829 (3d Cir. 1951). See also, Caisson v. Ingersoll-Rand Co., 622 F.2d 672, 682 (3d Cir. 1980). Thus, "[qualifications] to express an opinion on a given topic are to be decided by the judge alone; (t)he weight to be given any expert opinion admitted in evidence by the judge is exclusively for the jury." Jenkins v. United States, 307 F.2d at 646. See also, Admiral Theatre Corp. v. Douglas Theatre Co., 437 F. Supp. 1268, 1297 (D.Neb.1977), aff'd, 585 F.2d 877 (8th Cir. 1978).
The determination of the trial court with respect to the admission or exclusion of expert testimony is to be sustained unless "manifestly erroneous." Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S. Ct. 1119, 1122, 8 L. Ed. 2d 313 (1962); Caisson Corp. v. Ingersoll-Rand Co., 622 F.2d at 682; Universal Athletic Sales Co. v. American Gym, Etc., 546 F.2d at 537.
It follows then, that the trial court's decision with respect to a witness' qualifications to testify as an expert will not be disturbed on review absent a clear abuse of discretion. Knight v. Otis Elevator Co., 596 F.2d 84, 87 (3d Cir. 1979); Universal Athletic Sales Co. v. American Gym, Etc., at 537.
In the case sub judice, the court ordered Mr. Walsh's deposition for the purpose of eliciting his qualifications to give expert testimony. Following an exhaustive inquiry into those qualifications, we concluded that Mr. Walsh had neither the appropriate experience, training nor education to give his opinion as to whether the defendant used proper techniques for controlling a skidding tractor-trailer during icy conditions.
Specifically, Mr. Walsh testified that he did not have either a scientific or engineering background; that he was unable to calculate the coefficient of friction on the roadway at the time of the accident. (Deposition at 3, 15, 18, 20). See, Flick v. James Monfredo, Inc., 356 F. Supp. 1143, 1149 (E.D.Pa.), aff'd, 487 F.2d 1394 (3 Cir. 1973).
Mr. Walsh's "expertise" in the area of proper tractor-trailer driving techniques in general and skid control in particular, was acquired exclusively through training provided by his employer, United Parcel Service. Given the limited nature of Mr. Walsh's training and experience in these areas, exclusion of his opinion testimony was entirely proper and therefore, does not warrant a new trial.
We have considered plaintiff's remaining grounds and find them likewise to be without merit. Specifically, plaintiff contends that the court erred in refusing to permit Mr. Walsh to testify that his company would have provided instruction on skid control to a driver having the defendant's experience and in refusing to permit Mr. Walsh to show to the jury a film entitled "Skids Can Be Controlled." For the reasons heretofore discussed, we find that our refusal to permit Mr. Walsh to testify and show the film was not error.
Plaintiff's unsubstantiated contentions, presented without any elaboration, that the court erred in not instructing the jury that failure to place flares on the highway in accordance with federal regulations constitutes negligence per se and, further, inadequately instructed the jury concerning comparative negligence are equally without merit. Our charge to the jury contained complete and adequate instructions regarding the elements of both negligence and comparative negligence, from which the jury could make an informed finding.
Finally, plaintiff charges that the jury's verdict was against the weight of the evidence and contrary to law. However, the record unequivocably shows that the verdict was supported both by a preponderance of the evidence and pertinent legal principles. We see no reason to upset the jury's conclusion that plaintiff failed to satisfy his burden of proof.
Accordingly, plaintiff's motion for new trial is denied.