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April 25, 1983


The opinion of the court was delivered by: RAYMOND J. BRODERICK



 This is a diversity action in which plaintiff, Daniel Marks, as guardian of the estate of his son, David Marks, an incompetent, alleged that his son was severely injured in an automobile accident as a result of the negligence of Mobil Oil Corporation ("Mobil"), which filed a third-party complaint against Barbara Lou McCreight ("McCreight"), the driver of the car in which David Marks was a passenger. A bifurcated trial was held before a jury during September, 1982. The jury found Mobil and McCreight to have been negligent, specifically finding that Mobil was 60% causally negligent and that McCreight was 40% causally negligent in bringing about the accident and injuries to David Marks. After hearing evidence on damages, the jury awarded David Marks $ 5,147,000 in damages. This amount as increased to $ 6,583,020.27 by application of Pennsylvania Rule of Civil Procedure 238 which provides for the award of pre-judgment interest. Mobil and McCreight have each moved for both judgment notwithstanding the verdict, or in the alternative for a new trial. For the reasons hereinafter set forth, the Court will enter an Order denying these motions.


 Plaintiff alleged that David Marks was, on November 26, 1978, injured in an automobile accident as a result of the negligence of Joseph W. Galantino ("Galantino"), a Mobil truck driver acting within the course and scope of his employment as an agent of Mobil. Galantino was driving a 45-foot, 15-ton Mobil tanker truck, in particular, a 1978 Kenworth truck tractor with a tank trailer attached. At the time of the accident, Marks was a passenger in a 1969 Volkswagen Beetle driven by McCreight. The accident occurred on U.S. Route 202 in Tredyffrin Township, Chester County, Pennsylvania, as McCreight and Marks were returning to college in North Carolina from their respective parents' homes in Wayne, Pennsylvania. Mobil filed a third-party action against McCreight, averring that if Mobil was found to be liable, McCreight's negligence had also contributed to the injuries to Marks.

 Trial was held before a jury in September, 1982. The liability portion of the case was tried first. In answers to interrogatories, the jury found, based on a preponderance of the evidence, that Mobil and McCreight were both negligent and that their negligence had been a proximate cause of the accident. Specifically, the jury found Mobil, through its driver Galantino, to have been 60 percent causally negligent and found that McCreight was 40 percent causally negligent. The trial then continued on the issue of damages, whereupon the jury, after receiving instructions as to the proper measure of damages for lost earning capacity and pain and suffering, returned with its verdict of $ 5,147,000 in damages for David Marks.

 As to liability, plaintiff contended that Galantino's negligence had brought about the accident because, while driving the large Mobil tanker rig at 65 miles per hour, he passed the McCreight Volkswagen creating an air current or bow wave which caused the Volkswagen to leave the highway, turn over, and injure David Marks. David Marks was thrown from the vehicle, which was not equipped with seat belts. Upon impact, Marks was severely injured, suffering brain and spinal damage which have rendered him incompetent, spastic, and paraplegic. The speed limit on the relevant portion of Route 202 at the time of the accident was 55 miles per hour. Plaintiff contended that the Mobil tanker rig had caused the accident by (1) passing the McCreight VW at excessive speed (65 m.p.h.), thereby creating the aerodynamic force which affected the McCreight vehicle; and (2) failing to sound the truck's horn so as to warn McCreight of the imminent pass of the truck.

 Mobil's defense to the action was three-fold:

 first, that the aerodynamic effect posited by plaintiff was a physical impossibility; second, that McCreight was aware of the passing truck and that the failure of Galantino to sound his horn could not have caused the accident; and finally that Galantino had been negligent only in driving at excessive speed and that the accident, if it was proximately caused by anyone's negligence, must have resulted from inattentiveness or driver error on the part of McCreight. McCreight's defense to Mobil's third-party complaint was that she had not been negligent in operating her VW but that the VW had been altered in its course and ultimately driven off the road by a collision with the Mobil vehicle.

 In support of their various explanations of what happened, Marks and Mobil both presented eyewitness testimony and expert testimony. Plaintiff's expert was Dr. James Wambold ("Wambold") professor of Mechanical Engineering at Pennsylvania State University. Mobil presented expert witnesses in an attempt to refute Dr. Wambold's expert testimony. The principal eyewitnesses were McCreight, Galantino, and Bruce Keeler ("Keeler"). Keeler had been driving on Route 202 at the time of the accident and had witnessed the accident in his rear view mirror.

 In support of its motions for judgment n.o.v. or for a new trial, Mobil's principal contentions are that: (1) Dr. Wambold's testimony was flawed in several respects and should not have been admitted; (2) with or without Dr. Wambold's testimony, the jury's finding of negligence on the part of Mobil is not supported by the evidence; (3) David Marks should have been excluded from the courtroom because his obviously severe injuries may have biased the jury in his favor; (4) the Court should have granted a mistrial when the severely injured David Marks uttered some words from the rear of the courtroom at a point during the testimony of McCreight; (5) the Employees' Rulebook of Mobil should not have been admitted into evidence; (6) the Court should not have instructed the jury that Galantino's driving the tanker rig at 65 m.p.h. (10 miles above the posted speed limit) was negligence per se; (7) the verdict was excessive and (8) the Court should not have added prejudgment interest to the damage award pursuant to Pennsylvania Rule of Civil Procedure 238. Despite the large number of proposed grounds for setting aside the jury's verdict, Mobil has not, for the reasons discussed more fully below, persuaded this Court to grant its motions.

 Third-party defendant McCreight has also filed motions for judgment n.o.v. or in the alternative for a new trial. As grounds for her motions, McCreight contends that (1) the evidence does not support the jury's finding that she was 40 percent causally negligent in bringing about the accident; (2) witness Keeler's reference in his testimony to being contacted by an insurance adjuster warrants upsetting the jury verdict; (3) the verdict amount was excessive; (4) the Court should have given McCreight's requested instruction concerning the duties of a motorist being passed on the highway and (5) the Court should not have applied Pennsylvania Rule of Civil Procedure 238 to the verdict. Like Mobil, McCreight has provided this Court with no persuasive reason for setting aside the jury's verdict, which was arrived at after a fair trial.

 The Standard for Ruling Upon Defendant's Motions

 A grant of judgment notwithstanding the verdict is appropriate only when, viewing the evidence presented and drawing all inferences in favor of the verdict winner, a reasonable person could reach no conclusion other than the fact finder had made a mistake and that the moving party was entitled to judgment. See Thomas v. E.J. Korvette, Inc., 476 F.2d 471, 474 (3d Cir. 1973); Meyer v. W.R. Grace & Co., 421 F.Supp. 1331, 1334 (E.D. Pa. 1976). A moving party is entitled to judgment n.o.v. only when the evidence in support of the verdict winner is insufficient to even create an issue of fact to be submitted to the jury. See Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3d Cir. 1970). Woodward & Dickerson, Inc. v. Yoo Hoo Beverage Co., 502 F.Supp. 395 (E.D. Pa. 1980). A motion for judgment n.o.v. "may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment." 5A Moore's Federal Practice, P 50.07(2), at 50-77 (footnote omitted). Overturning a jury verdict is particularly inappropriate where the determination of the proper verdict requires an evaluation of the credibility of witnesses. See Posttape Associates v. Eastman Kodak Company, 68 F.R.D. 323 (E.D. Pa. 1975), rev'd on other grounds, 537 F.2d 751 (3d Cir. 1976). In ruling on a motion for judgment n.o.v., the Court should not consider the credibility of witnesses. See Thomas v. E.J. Korvette, supra, 476 F.2d at 474.

 There are three grounds for granting a new trial: (1) manifest error of law; (2) manifest error of fact; and (3) newly discovered evidence. See 6A Moore's Federal Practice P 59.07. Neither Mobil nor McCreight have contended that there exists newly discovered evidence pertinent to the trial of this matter. Motions for a new trial require the exercise of discretion by the Court, whose duty is to see that the trial verdict does not result in a miscarriage of justice. See Woodward & Dickerson, supra, 6A Moore's Federal Practice P 59.08(4), at 59-160; Thomas v. E. J. Korvette, supra, 476 F.2d at 474-75. "The jury's verdict may be set aside only if manifest injustice will result if it were allowed to stand. The Court may not substitute its own judgment for that of the jury merely because the Court may have reached a different conclusion." Woodward & Dickerson, Inc. v. Yoo Hoo Beverage Co., supra, 502 F.Supp. at 397. See also McNulty v. Borden, Inc., 542 F.Supp. 655, 657 (E.D. Pa. 1982).

 An Examination of the Proferred Grounds for J.N.O.V. or New Trial

 A. The Admissability of Dr. Wambold's Testimony.

 Dr. Wambold testified for slightly more than one-half of a trial day. On direct examination, he opined that a large vehicle, such as the Mobil tanker driven by Galantino, travelling at high velocity creates an air current emanating out from the forward portion of the truck; Dr. Wambold termed this the "bow wave". Dr. Wambold testified that, as the Mobil tanker began to draw alongside the McCreight VW, it would have exerted an outward pressure on the VW, pushing it to the side of the highway. He further testified that, as the Mobil tanker got ahead of the McCreight VW, the VW would have been within the "curl" of the bow wave and would then have ceased to be pushed to the right by the aerodynamic pressure of the bow wave. Dr. Wambold theorized that a normal person in McCreight's position when first she felt the bow wave acting upon her VW, would have, consciously or subconsciously, have turned the steering wheel slightly to the left to counteract the outward pressure created by the bow wave. He further testified that as the Mobil tanker drew ahead of the VW, there would have been a sudden cessation of the outward thrust of the bow wave upon the VW because the VW would then have been in a relative vacuum underneath the curl of the bow wave. At this point, testified Dr. Wambold, a driver who had made a steering correction in order to avoid being blown off the highway by the bow wave, would have suddenly veered to the left because of the sudden cessation of outward pressure to the right, thus causing a contact between the VW and the Mobil tanker.

 The jury was presented with ample evidence concerning plaintiff's theories of liability in this matter. The jury could have reasonably accepted Dr. Wambold's expert testimony that the excessive speed of the truck and its aerodynamic effect on the Volkswagen was a proximate cause of the accident and/or it could have determined that the excessive speed of the truck and the failure to warn of its passing was a proximate cause of the accident. The parties agree that, as the Mobil tanker passed the McCreight VW, the two vehicles briefly collided before the VW careened to the right, rolling over and throwing David Marks from the VW. McCreight testified that she did not recall turning the wheel to the left. However, she did testify that she was aware of a strong force pushing the VW to the right as the Mobil tanker came alongside her in the left lane of Route 202, while she was driving in the right lane. McCreight testified that she attempted to hold the steering wheel tight and straight, but the jury may have determined that she was not successful in maintaining control of the vehicle. After the two vehicles collided, for whatever reason, the impact of the much larger Mobil tanker may have caused the VW to leave the road. McCreight testified on cross-examination that the impact between the VW and the tanker was "like a pool ball striking the side of the table and ricochetting off." (N.T. at 206). The jury's finding that both Mobil and McCreight were causally negligent in bringing about the accident is amply supported by the evidence presented at trial.

 Mobil challenges the admissibility of Dr. Wambold's testimony by contending that Wambold was not qualified to testify as to possible driver reactions to the bow wave created by the Mobil tanker. However, when Dr. Wambold testified regarding the bow wave and possible driver reactions to it, counsel for the defendants did not object to his testimony nor did counsel object to Dr. Wambold's opinion as to causation, which was that McCreight would have acted like an ordinary driver and steered against the bow wave's outward force but then permitted the VW to veer left when that outward force lessened or ceased (See N.T. 295-96). Dr. Wambold did not represent himself to be an expert on driver behavior nor did he attempt to offer a statistical prediction as to driver behavior in response to the bow wave. Instead, he merely discussed driver responses as a way of illustrating his basic thesis, which was that the bow wave or outward pressure created by the large, speeding Mobil tanker was sufficient to affect the path of the VW being passed by the Mobil tanker.

 In an attempt to refute the expert testimony of Dr. Wambold, Mobil presented the expert testimony of Dr. Frank Buckley, professor at the University of Maryland and a mechanical engineer who has worked extensively in aerodynamics, as well as the expert testimony of Edward Heitzman, a mechanical engineer who has worked in the field of highway safety. They testified that the bow wave created by the Mobil tanker could not have been as strong as posited by Dr. Wambold and that the accident could not have occurred but for serious driver error by McCreight. In particular, they noted that, because there were paint marks from the VW on the right front tire of the Mobil truck, this suggested that McCreight had collided with the truck for a reason other than the aerodynamic effects of the truck.

 It was for the jury to evaluate the conflicting expert and eyewitness testimony. The jury was presented with ample evidence from which it could have concluded that the aerodynamic effect of the speeding Mobil vehicle coupled with McCreight's response was a proximate cause of the accident and/or that the failure of the Mobil tanker to warn of its passing combined with the failure of the startled McCreight to control her vehicle under these circumstances was a proximate cause of the accident. The jury's acceptance of either one or both of these theories of liability presented by the plaintiff is consistent with the jury's finding that Mobil was 60% causally negligent and that McCreight was 40% causally negligent.

 As heretofore noted, the jury was presented with a host of evidence from which it could determine whether there was in fact any validity to Dr. Wambold's testimony regarding the aerodynamic effect of the speeding Mobil truck. Counsel for Mobil cross-examined Dr. Wambold at length. (See N.T. 253-73; 297-352; 361-65). Mobil also presented three days of testimony from two expert witnesses of its own (See N.T. 649-937). Mobil also showed the jury a videotape of a re-enactment of a tanker passing a VW in order to illustrate its theory, which was that the speeding tanker created a negligible aerodynamic force upon the VW. Mobil's closing argument devoted extensive discussion directed toward attempting to refute Dr. Wambold's testimony (see N.T. 1012-13; 1024-32; 1041-45).

 Quite frankly, all of Mobil's attacks on Dr. Wambold's testimony go to the weight to be accorded his opinions, not to their admissability as evidence in this trial. The jury had ample and fair opportunity to scrutinize the testimony of Dr. Wambold, defendant's experts, and the eyewitness testimony of McCreight and Keeler against the backdrop of their common sense and experience. The jury found, based on some or all of this evidence, that Mobil had been 60 percent causally negligent in bringing about the accident. This finding is not unreasonable and does not constitute a miscarriage of justice. The Court will therefore refuse to disturb the jury's verdict.

 Mobil has further alleged that the portion of the pretrial order in this case which was completed by plaintiff's counsel did not fully disclose the substance of Dr. Wambold's trial testimony and that a variance between what defendants had been led to expect in the pretrial order and the actual testimony made it impossible for Mobil to effectively counter the Wambold testimony at trial. As the preceding discussion has indicated, Mobil's counsel was quite well prepared for Dr. Wambold's testimony and launched a vigorous attack on it at trial. Mobil has at most pointed out minute variances between plaintiff's pretrial paraphrasing of the Wambold testimony and the actual Wambold testimony. Such quibbling on Mobil's part does not support a grant of judgment n.o.v. or a new trial. See Hammonton Investment Co. v. Morco, Ltd., 452 F.2d 119, 122 (7th Cir. 1971). If Mobil had truly been "surprised" by Dr. Wambold's testimony, it should have objected at the appropriate juncture (which it did not) and asked for a brief continuance for the purpose of preparing rebuttal testimony or cross-examining Dr. Wambold (see Traylor v. Pickering, 324 F.2d 655, 658 (5th Cir. 1963). Mobil did not seek such a continuance.

 Mobil has also suggested that Dr. Wambold did not possess sufficient expertise in the area of automobile vehicle aerodynamics to offer an expert opinion as to the effect of a large speeding tanker upon nearby vehicles, and that the Court should therefore have prohibited him from taking the stand and testifying. The admission of expert testimony rests within the sound discretion of the trial court. See Seese v. Volkswagenwerk A.G., 648 F.2d 833, 844 (3d Cir. 1981); Fuentes v. Reilly, 590 F.2d 509, 511 (3d Cir. 1979). In admitting Dr. Wambold's testimony, this Court was clearly exercising its discretion in an appropriate manner. Dr. Wambold's resume clearly indicates that he possesses substantial expertise in the area of vehicle dynamics. He has a doctorate in Mechanical Engineering and has had extensive industrial experience in studying shock and vibration concerning vehicles. He has taught related courses at Penn State and published articles in this field. Dr. Wambold testified that vehicle dynamics is the study of the manner in which a vehicle moves due to the forces that are generated upon it from wind forces, air forces, ground forces, or from the forces of the person steering the vehicle (see N.T. at 277).

 Federal Rule of Evidence 702 provides that:

If scientific, technical, or other specialized knowledge will assist the trier of facts to understand the evidence or to determine a fact in issue, the witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of opinion or otherwise.

 In this case, in which the jury was asked to determine the cause of the tragic accident that had occurred rapidly and with only a few eyewitnesses to it, expert testimony concerning the aerodynamic effect of vehicles and upon vehicles was clearly helpful to the trier of fact. Both plaintiff and Mobil presented such evidence. The jury was free to weigh the competing expert and eyewitness testimony in determining liability. It did so in a reasonable manner that will not be disturbed by this Court.

 It should be further noted that the Court instructed the jury as to the proper approach to evaluating the expert testimony of both sides. The Court instructed the jury that

The law says that if you should decide the opinion of an expert witness is not based on sufficient education, sufficient experience, sufficient scientific knowledge, or if you should conclude that the reasons given in support of his opinion were not sound, or were not supported by the evidence in the case, or is outweighed by other evidence in the case, the law says you may disregard the opinion of that expert witness entirely.
* * *
The validity of the opinion that is expressed by the witness rests upon the truth of those facts that the witness was asked to assume. And if there should be any infirmity of the hypothesis or the assumed facts, then the infirmity attaches to the witness' answer that was predicated upon those assumed facts.

 (N.T. 1072). Mobil has presented this Court with no reason related to Dr. Wambold's testimony for disturbing the jury's verdict.

 B. The Weight and Sufficiency of the Evidence in General

 Mobil and McCreight also claim that the verdict was not supported by the evidence. This Court, however, finds that the verdict was supported by the evidence presented at trial. As heretofore noted, all sides presented expert and eyewitness testimony concerning the accident. Based on a fair reading of this evidence, a reasonable jury could easily have reached the conclusion that Mobil (through its driver Galantino) owed Marks and McCreight a duty of adequate care in passing the VW, that Mobil breached this duty through Galantino's speeding and failure to warn, and that the accident was caused by either the bow wave or the impact between the vehicles in either the passing lane or the right hand lane. The jury could easily have further concluded that McCreight's reaction to the bow ...

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