Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 85-0158).
Mansmann, Scirica, and Cowen, Circuit Judges.
In this negligence action against American Standards Testing Bureau Inc. brought in federal court on diversity grounds Honeywell, Inc. alleged that it suffered a loss by way of the state court judgment against it when American Standards failed to supply an expert witness to assist Honeywell in its defense of a personal injury action.
After a federal court jury found in favor of Honeywell American Standards filed this appeal contending inter alia, that the district court erred in not requiring the plaintiff to "re-create" or re-try the state court action before the federal jury instead of permitting the plaintiff to utilize expert testimony on causation to meet its burden of proof. American Standards also argued that the district court erred in failing to instruct the jury that the former defense counsel's failure to cite Barber v. Kohler, 428 Pa. 219, 237 A.2d 224 (1968), could be contributory negligence which should be imputed to Honeywell.
We find that Honeywell was not required to prove legal causation through a reenactment of the state-court action, with the addition of the omitted expert testimony, before the federal jury. Expert opinion testimony was sufficient proof of causation. We also find that the district court's refusal to charge on Barber was, at best, harmless error. Under the applicable Pennsylvania law, contributory negligence is no defense to the jury's ultimate finding of wanton misconduct.
We further conclude that the district court's refusal to instruct the jury that it might find deficiencies in counsel's representation of Honeywell to be a superseding cause of Honeywell's loss in state court was not error. Any such deficiencies could be contributing causes at most and would not supersede American Standards' failure to provide an expert witness.
We also find that if the province of the federal jury was invaded by the admission of expert opinion testimony as to what the state jury would have decided if presented with the omitted evidence, any error in this regard was harmless. The jury had before it all of the evidence upon which the expert based his opinion and, therefore, the jury could fully evaluate the expert's conclusions.
Finally, we find that the evidence supports the jury's finding that the third-party defendant, Aetna Life & Casualty Co., did not contract to indemnify American Standards against its own negligence in providing services on behalf of Honeywell.
We will affirm the judgment of the district court.
In May of 1978, John Ball, an employee of Bell Telephone Co. of Pennsylvania, was installing telephone lines on Honeywell's premises when the ladder upon which he was standing fell against a partition. A glass panel in the partition broke, injuring Ball's left hand.
Ball sued Honeywell in state court, claiming that his injury was caused by Honeywell's negligent use of plate glass in the office partitions rather than safety glass or plastic panels, and by Honeywell's negligent failure to replace a metal cap evidently missing from the top edge of the glass portion of the partition against which the ladder had fallen.
Honeywell's insurer, Aetna Life & Casualty Co., assigned Joseph C. DeMaria, Esq., a salaried member of Aetna's legal staff, to defend Honeywell in the Ball action. Mr. DeMaria arranged for American Standards to assign an expert witness for Honeywell's defense to provide an opinion as to whether the use of plate glass in the partition violated fundamental principles of safety engineering practices.
American Standards provided DeMaria with a report bearing the name of C. F. Peck, the expert witness whom American Standards made available for trial. At the time of trial, however, counsel for Honeywell learned that Dr. Peck had not participated in the preparation of the report and could not testify to it as his own opinion. Counsel for Ball presented expert testimony that the use of plate glass was unreasonably dangerous and stressed in closing that Honeywell had been unable to produce expert testimony to the contrary. The jury returned a verdict in favor of the plaintiff and against Honeywell.
Honeywell then sued American Standards Testing Bureau in federal court, seeking compensatory and punitive damages for American Standards' failure to provide an expert witness for Honeywell's defense in the state court personal injury action brought by John Ball. Honeywell alleged that American Standards' breach of its duty to provide an expert witness caused Honeywell's loss of the Ball case. Actual damages were set at $300,000, the amount Honeywell paid to settle the case after verdict. In addition, Honeywell sought punitive damages against American Standards.
American Standards then filed a third-party complaint against Aetna alleging, inter alia, that Aetna had agreed to indemnify it against all liability arising out of work performed in connection with the Ball case, including liability arising from American Standards' own negligence.
The case was tried to a jury which returned verdicts in favor of Honeywell and Aetna and against American Standards. American Standards' motions for judgment n.o.v. or for a new trial were denied.
American Standards raises six contentions on appeal: (1) that the district court erred in ruling that citation of Barber v. Kohler, 428 Pa. 219, 237 A.2d 224 (1968), would not have required a directed verdict for Honeywell in the Ball case and in failing to instruct the jury that defense counsel's failure to cite Barber could be contributory negligence, which should be imputed to Honeywell; (2) that the district court erred in refusing to instruct the jury that it might find deficiencies in counsel's representation of Honeywell to be a superseding cause of Honeywell's loss in the state-court action; (3) that Honeywell was required to prove legal causation through a re-creation of the Ball trial before the jury in this case; (4) that the trial court erred in admitting expert opinion testimony regarding what a former jury would have found had it been presented with the evidence which American Standards agreed to supply; (5) that the district court erred in failing to rule that Aetna was required to indemnify American Standards against American Standards' own negligence; and (6) that American Standards' rights were substantially prejudiced by certain of the district court's comments to the jury.
The district court had subject matter jurisdiction pursuant to 28 U.S.C. § 1332. Our appellate jurisdiction lies pursuant to 28 U.S.C. § 1291.
We will affirm the district court's denial of a judgment n.o.v. "unless the record is 'critically deficient of that minimum quantity of evidence from which the jury might reasonably afford relief."' Link v. Mercedes-Benz of N. America, 788 F.2d 918, 921 (3d Cir. 1986) (citation omitted).
We review the district court's ruling on a new trial motion only for abuse of discretion unless the court's denial of the motion Is based on application of a legal ...