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November 12, 1982


The opinion of the court was delivered by: GILES


 Eunice Ernst was severely injured when her Honda Civic collided with defendant's truck, driven by defendant's employee, Charles Cleary. On December 9, 1981, in response to a special interrogatory, a unanimous jury found that Cleary was not negligent. From a verdict molded in favor of the defendant, plaintiff moves for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. For the reasons set forth below, plaintiff's motion is denied.

 The accident occurred at the intersection of Geryville Pike and McLean Station Road. (N.T. at 18-19). Mrs. Ernst was traveling south on Geryville Pike. Mr. Cleary was on McLean Station Road in the process of making a left turn onto the northbound lanes of Geryville Pike. According to her testimony, when Mrs. Ernst saw the truck enter the intersection, she veered to the far right side of the road, attempting to go around the back of the truck to avoid a collision. (N.T. at 23). Upon realizing that she was not going to make it around the truck, Mrs. Ernst then slammed on her brakes. (N.T. at 65). The left front of her car crashed forcefully into the rear of the defendant's truck.


 The granting or denial of a motion for a new trial lies within the discretion of the trial judge. Larsen v. IBM Corp., 87 F.R.D. 602, 606 (E.D. Pa. 1980); Hard v. Stevens, 65 F.R.D. 637, 640 (E.D. Pa. 1975). In deciding whether to grant or deny the motion, the court must be careful not to impinge upon the function of the jury. As one court stated: "the Court may not substitute its own judgment for that of the jury merely because it may have reached a different conclusion." Larsen, 87 F.R.D. at 606 (citing Spurlin v. General Motors Corp., 528 F.2d 612, 620 (5th Cir. 1976)).

 A. The Testimony of Officer Rupp

 In her motion, plaintiff asserts various grounds for a new trial. Her central allegation *fn1" concerns the testimony of Officer Rupp, the Police Chief for the township who arrived on the scene about five to ten minutes after the accident. Over objection, Officer Rupp was permitted to testify on cross-examination as to the point of impact of the two vehicles. *fn2" Since he was not present to observe the accident, his testimony was opinion evidence. Plaintiff contends that eliciting his opinion was beyond the scope of direct examination and particularly prejudicial since a police officer wears a "badge of authority." Plaintiff maintains that the jury gave undue weight to Officer Rupp's opinion, asserting that point of impact was the ultimate issue in the case.

 Having reviewed the transcript, the parties' briefs and the oral argument, I find that permitting Officer Rupp to so testify was neither erroneous nor prejudicial. Plaintiff's counsel "opened the door" on direct by asking questions which, although not expressly couched in terms of opinion, called for opinion testimony on point of impact nevertheless. For example, in response to a question asked on direct examination, Officer Rupp stated, "I would say where I found it [the truck] to be is where it came to rest after impact." (N.T. 2.155). Since Officer Rupp did not witness the dynamics of the accident, necessarily it was his opinion that where he found the defendant's vehicle was where it came to rest after impact. Implicitly, this testimony called into play the witness's assumption as to the point of impact and the subsequent path of plaintiff's vehicle. On cross-examination, then, it was proper to permit defense counsel to inquire into the basis or foundation of that opinion testimony.

 Plaintiff's counsel also inquired of Officer Rupp on direct; "were you able to ascertain whether that debris was from the Ernst vehicle?" Officer Rupp responded; "it [sic] my opinion that it did." (N.T. at 2.171). The association of the debris with plaintiff's vehicle was based upon the conclusion that there was a trail of debris leading from a point on the highway to plaintiff's vehicle and not upon any comparative examination of the type of debris and the intact glass on the vehicle.

 At the outset, I note that I have been referred to state law on this point. State law of evidence is applicable in a federal district court only to the extent that the situation is not governed directly by the Federal Rules of Evidence. See, e.g., Fed. R. Evid. 101; Werner v. Upjohn Co., Inc., 628 F.2d 848, 856 (4th Cir. 1980), cert. denied, 449 U.S. 1080, 66 L. Ed. 2d 804, 101 S. Ct. 862 (1981). Here, the Federal Rules of Evidence control and directly support the admission of this testimony. *fn3"

 Rule 701 of the Federal Rules of Evidence abrogates the common law by allowing lay witnesses to testify to opinions or inferences if they are "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." As the Third Circuit noted in Teen-Ed, Inc. v. Kimball International, Inc., 620 F.2d 399 (3d Cir. 1980): "the expression of opinion or inferences by a lay witness is permitted because of the qualification in Rule 701(a) that the factual predicate of the testimony be within the witness's perception." 620 F.2d at 403. Here, Officer Rupp's opinion about the point of impact was based upon his perception of physical evidence found at the accident scene; more particularly, his opinion was based upon a trail of debris leading from the highway to the plaintiff's car. (N.T. at 2.195-196). The officer's logic was simple -- the accident occurred where the largest concentration of debris was found and dissipated in the direction in which the car proceeded to point of rest. This opinion was susceptible to specific cross-examination, see Teen-Ed, 620 F.2d at 403, and was of such a nature as to be helpful to a jury. A trial judge may exercise discretion to admit lay opinion testimony, see Seese v. Volkswagenwerk A.S., 648 F.2d 833, 844 (3d Cir. 1981); Scheib v. Williams-McWilliams Co., Inc., 628 F.2d 509, 511 (5th Cir. 1980); Teen-Ed, 620 F.2d at 402, and under the circumstances of this case that discretion was not abused. Similar testimony was elicited from the defendant's expert witness, whose qualifications are not questioned by the plaintiff.

 Officer Rupp's testimony was also admissible because he had expertise as an accident investigator. After plaintiff's counsel objected to the inquiry as to point of impact, and the objection was overruled because the opinion was within the competency of a lay person to express, he insisted that Officer Rupp not be permitted to offer any opinion unless qualified as an expert in accident investigation. Defendant's counsel then inquired into Officer Rupp's training and experience in the investigation of accidents. (N.T. at 2.190-.194). Qualifications for expert testimony under Fed. R. Evid. 702 are very broad and are to be liberally construed. See Knight v. Otis Elevator Co., 596 F.2d 84, 88 (3d Cir. 1979). In light of Officer Rupp's testimony that he was chief of police for eight years, had received formal training in accident investigation and had experience investigating no less than two to three hundred accidents, N.T. 2.191-.193, he surely possessed the requisite "knowledge, skill, experience, training or education," required under R. 702. As an expert, his opinion on point of impact would have been admissible.

 In Knight v. Otis Elevator Co., 596 F.2d 84 (3d Cir. 1979), a chemist and engineer was not permitted to testify as an expert on whether unguarded elevator control buttons constituted a design defect. The district court reasoned that the putative expert had no experience in the design and manufacture of elevators. The Third Circuit reversed, noting that these defects should go to the weight rather than admissibility of the testimony. 596 F.2d at 88. Similarly, any contention as to Officer Rupp's credentials or the foundation for his opinion went to the weight of the evidence. Indeed, the fact that his opinion was based only upon the concentration of debris, rather than measurements, was amply pointed out to the jury. Plaintiff's counsel had full opportunity to impeach Officer Rupp as an accident ...

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