Record and brief — Messenger v. Bucyrus-Erie Co.

uonneg

Office-Supreme Court, U.S.

„81-1136 FILED

DEC 17 196)

ALEXANDER L. STEVAS,

IN THE CLERK

—

Supreme Court of the United States

October Term, 1981

MILO R. MESSENGER, an individual, and

CONNIE MARIE MESSENGER, his wife,

Petitioners,

vs.

BUCYRUS-ERIE COMPANY, a corporation,

Respondent.

On Writ oF CERTIORARI TO THE UNITED STATES

Court OF APPEALS FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI TO

REVIEW THE DECISION OF THE UNITED

STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

LOUIS M. TARASI, JR.

TARASI & TIGHE

Attorneys for Petitioners

510 Third Avenue

Pittsburgh, Pennsylvania 15219

(412) 391-7135

Retavie Times Publishing Co.

Pittsburgh, Pa. (412) 881-7463

I. Questions Presented for Review

1. Did the United States District Court for the

Western District of Pennsylvania commit reversible error

in excluding opinion testimony from the Plaintiff, Milo

R. Messenger, which testimony is admissible under

Federal Rule of Evidence 701, thus requiring the grant-

ing of a new trial on the issue of causation?

2. Did the United States Court of Appeals for the

Third Circuit err when it failed to reverse the judgment

of the trial court and order a new trial on the issue of

causation?

II.

II. List of Parties

All parties to the proceeding in the Court whose judg-

ment is sought to be reviewed are as follows:

1. Milo R. Messenger and Connie Marie

Messenger, his wife, were Plaintiffs in the United

States District Court for the Western District of

Pennsylvania and Appellants in the United States

Court of Appeals for the Third Circuit:

2. Bucyrus-Erie Company, a corporation, was the

Defendant in the United States District Court for

the Western District of Pennsylvania, and the Ap-

pellee in the United States Court of Appeals for the

Third Circuit.

III.

III. TABLE OF CONTENTS.

Page

I. Questions Presented for Review ............. i

eee ii

. iii

\ xe |. Ff rer rrr eee iv

Reference to Reports of Opinions Delivered Below ... 1

Statement of Jurisdiction ...............00e0e00- 2

D adescecbvesvecesecensee twee 3

eee. „„ „„ „„ „„ „„ 4

Argument and Reasons for Granting the Writ...... 6

% („.d 14

Appendix:

A- Memorandum Opinion and Order of the

United States District Court for the Western

District of Pennsylvania Dated December 31,

cc. 15

B- Judgment Order of the United States

Court of Appeals for the Third Circuit Dated

e b „ 24

C- Order of the United States Court of Ap-

peals for the Third Circuit Denying Petition for

Rehearing Dated October 9, 1981 ............ 27

IV.

Page

IV. TABLE OF AUTHORITIES.

Cases:

Greenwood Ranches. Inc. v. Skie Construction Com-

pany, 629 F.2d 518 (8th Cir. 1980)............ 12

Hing Lee v. Gray, 456 F.2d 1276 (3d Cir. 1972)..... 11

Lang v. Texas and Pacific Railway Company, 624

Z 11

Teen -Ed. Inc. v. Kimball International. Inc., 620

ee .. 11

Statutes:

Title 28 U.S.C. Section 125,6(0lil))))) . 2

Title 28 U.S.C. Section 138381 ))))))))) 5

Rules:

Federal Rule of Evidence 60ꝛruãu 3

Federal Rule of Evidence 701........... 3,7,8,9,10,11,12

Federal Rule of Evidence 702.................... 3,12

Federal Rule of Evidence 7⸗õk4. 3

IN THE

Supreme Court of the United States

October Term, 1981

No.

MILO R. MESSENGER, an individual, and

CONNIE MARIE MESSENGER, his wife,

Petitioners,

vs.

BUCYRUS-ERIE COMPANY, a corporation,

Respondent.

On Writ or CERTIORARI TO THE UNITED STATES

Court OF APPEALS FOR THE THIRD CiRCUIT.

PETITION FOR WRIT OF CERTIORARI TO

REVIEW THE DECISION OF THE UNITED

STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

Reference to Reports of Opinions

Delivered Below

A jury tria! was held before the Honorable Rabe F.

Marsh, Senior District Judge of the United States

District Court for the Western District of Pennsylvania,

from September 23 to September 25, 1980. The jury

returned a verdict on special interrogatories indicating

that the product of Defendant was defective, but that

2

the defective product was not the proximate cause of

Plaintiff's injuries. A judgment was entered on the jury

verdict on September 25, 1980. On October 3, 1980,

Plaintiffs filed a Motion for a New Trial and Judgment

Non Obstante Veredicto. The trial court heard argument

on Plaintiffs’ motion on December 9, 1980, and on

December 31, 1980, issued a Memorandum Opinion deny-

ing Plaintiffs’ motions in their entirety (Appendix A). On

appeal by Plaintiffs, the United States Court of Appeals

for the Third Circuit at No. 81-1268, after considering

the appeal on the briefs only, entered a judgment order

affirming the judgment of the District Court (Appendix

B). On September 25, 1981, Plaintiffs, the Messengers,

filed a Petition for Rehearing En Banc with the United

States Court of Appeals for the Third Circuit and on Oc-

tober 9, 1981, Court of Appeals issued on Order denying

the Petition for Rehearing (Appendix C). This Petition

for Certiorari follows.

Statement of Jurisdiction

A final judgment in the form of an affirmance of the

Order of the United States District Court for the

Western District of Pennsylvania denying Plaintiffs’ mo-

tions for Judgment N.O.V. and for a New Trial was

entered by the United States Court of Appeals for the

Third Circuit on September 15, 1981. A Petition for

Rehearing was filed on September 25, 1981, and was

denied on October 9, 1981.

This Honorable Court has jurisdiction to review the

judgment as authorized by 28 U.S.C. Section 1254(1)

which provides that cases in the court of appeals may be

reviewed vy this Court “by Writ of Certiorari granted

upon the petition of any party to any civil or criminal

case, before or after rendition of judgment or decree.”

This Petition is timely and in accordance with the Rules

of the Supreme Court of the United States.

3

Rules Involved

Federal Rule of Evidence 602.

“LACK OF PERSONAL KNOWLEDGE

A witness may not testify to a matter unless

evidence is introduced sufficient to support a finding

person

need not, consist of the testimony of the witness

himself. This rule is subject to the provisions of rule

703, relating to opinion testimony by expert

witnesses.”

Federal Rule of Evidence 701.

“OPINION TESTIMONY BY LAY WITNESSES

If the witness is not testifying as an expert, his

testimony in the form of opinions or inferences is

limited ts those opinions or inferences which 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.

Federal Rule of Evidence 702.

“TESTIMONY BY EXPERTS

If scientific, technical, or other specialized

will assist the trier of fact to understand

the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify

thereto in the form of an opinion or otherwise.

Federal Rule of Evidence 704.

“OPINION ON ULTIMATE ISSUE

Testimony in the form of an opinion or inference

otherwise admissible is not objectionable because it

embraces an ultimate issue to be decided by the

trier of fact.

4

Statement of the Case

To understand fully the error of the trial court in ex-

cluding the opinion testimony of Milo R. Messenger, one

must be aware that Milo is an individual of limited in-

telligence and educational background. Throughout the

12 years of his education, he attended special education

classes for slow learners. Upon graduation from high

school, he enlisted in the Navy. However, he was

honorably discharged because of his limited intelligence

and inability to pass the educational tests in basic train-

ing.

On October 6, 1977, Milo Messenger was an employee

of Assad Iron & Metal Company (hereinafter referred to

as Assad) located in Brownsville, Pennsylvania. Assad is

engaged in the scrap metal business and has a scrap

yard for the purpose of buying, selling and processing

scrap metal. On the morning of October 6, 1977, Milo

Messenger was instructed by his boss to take the tractor

portion of a tractor trailer dump truck to the

maintenance garage so that the tires could be changed.

Before disengaging the tractor from the dump body,

Milo had to place wooden blocks under the dollies so that

when the dump truck was loaded with scrap iron the

dollies would not sink into the mud and become embed-

ded therein. A Bucyrus-Erie truck crane unit had been

positioned by another employee of Assad directly behind

this dump truck, so that it could be loaded after the trac-

tor portion was taken to the garage. In the course of

Milo's obtaining blocks of wood and positioning them

under the dump truck, he walked between the parked

dump truck and the parked truck crane. After he had

positioned the last block and was walking again between

the parked dump truck and the parked Bucyrus-Erie

truck crane, the truck crane backed up without any

warning to him and he was crushed between it and the

5

dump truck. The truck crane unit had no audible back-up

warning device installed on it by Bucyrus-Erie.

Milo Messenger filed suit against Bucyrus-Erie Com-

pany, alleging that the truck crane unit which had struck

him was defective because it failed to have an audible

automatic back-up warning device installed on it. Milo

Messenger further contended that the lack of this warn-

ing device was the proximate cause of the injuries which

he sustained.

A jury trial was held before the Honorable Rabe F.

Marsh, Senior District Judge of the United States

District Court for the Western District of Pennsylvania,

from September 23-25, 1980. The jury returned a verdict

indicating that the failure of Bucyrus-Erie to install a

back-up buzzer rendered the truck crane sold by it defec-

tive. The jury, however, decided the defective truck

crane was not the proximate cause of the injuries which

plaintiff sustained. A Motion for New Trial and judg-

ment N.O.V. was timely made, but was denied by the

trial court.

Plaintiffs appealed from the final judgment of the

United States District Court for the Western District of

Pennsylvania entered pursuant to the jury verdict.

By judgment order without opinion, the United States

Court of Appeals for the Third Circuit affirmed the deci-

sion of the lower court. A Petition for Rehearing to the

United States Court of Appeals for the Third Circuit

was denied. This Petition for Writ of Certiorari follows.

The basis for jurisdiction of the federal court of first

instance was 28 U.S.C. Section 1332(a) which granted

jurisdiction to the United States District Court where

the matter in controversy exceeds the sum of $10,000.00

and is between citizens of different states.

6

Argument and Reasons for Granting the Writ

There are two primary reasons why this Honorable

Court should exercise its discretion and grant a Writ of

Certiorari to review the decision of the United States

Court of Appeals for the Third Circuit.

First, the United States Court of Appeals for the Third

Circuit has, by affirming the decision of the trial court,

rendered a decision which is in conflict with decisions of

numerous other circuit courts of appeal on precisely the

same matter. The United States Court of Appeals for the

Third Circuit has also created a conflict between the

result of this decision and other decisions rendered by it.

Secondly, the United States Court of Appeals for the

Third Circuit has, by affirming the decision of the trial

court, decided an important question involving the new

Federal Rules of Evidence which has not been, but which

should be settled by your Honorable Court, so as to

create a clear decisional statement as to the meaning and

the import of the new Federal Rules of Evidence.

Prior to trial of the instant action, defense counsel filed

a Motion in Limine seeking to restrict the testimony of

Milo R. Messenger. In particular, the defense requested

that Milo Messenger not be permitted to testify at trial

concerning his observations or perceptions while walking

between the dump truck and the truck crane unit. The

defense further sought to prohibit Milo Messenger from

offering his opinion based on his observations and

perceptions that he would have been able to get out of

the way and escape injury if the Bucyrus-Erie truck

crane unit had been equipped with an automatic audible

back-up warning device. The trial court granted this mo-

tion. At trial, Plaintiffs’ counsel requested that the trial

_court permit testimony of this nature by Milo Messenger

but those requests were denied.

7

Milo Messenger would have testified, if permitted, that

based on his perceptions and observation of the relative

positions of the two (2) vehicles in question; their

distance apart; his knowledge that back-up buzzers

meant a vehicle was proceeding in reverse; the availability

of escape routes from his position between the vehi-

cles: and the fact that he was struck by the outer most

portion of the truck crane unit as he walked in that direc-

tion, that if there had been an audible back-up warning

device on the truck crane unit, he would have been able

to get out of the way and avoid the injuries which he

sustained.

Specifically, Petitioners submit that the exclu of

lay opinion testimony of Petitioner, Milo R. Messenger,

constitutes reversible error because, under Federal Rule

of Evidence 701, the proffered testimony of the Petition

fits squarely within the provisions of the rule as it was

rationally based on Petitioner's own preceptions, and

would have been helpful to a clear understanding of the

testimony of the facts in issue.

The error in excluding said testimony of the Petitioner,

is compounded by the fact that Petitioner, Milo R.

Messenger, is of extremely limited intelligence. Your

Petitioner, throughout the years of his education, attend-

ed special education classes for slow learners, and was, in

fact, discharged from the United States Navy because of

his limited intelligence, and inability to pass aptitude

tests during basic training. By excluding the opinion

testimony of such an individual, the trial court took from

the Petitioner, perhaps his only method of testifying. In

addition, Petitioner's testimony would be eminently

helpful to the jury for a clear understanding of the issue

of causation.

8

Rule 701 of the Federal Rules of Evidence was design-

ed to allow lay persons to explain and testify as to their

observations in a manner which effectively gets to the

truth and will greatly aid a jury. The prohibition of such

testimony by the trial court flies in the very face of the

letter and spirit of Federal Rule of Evidence 701. Indeed,

the opinions which would have been proffered by the

Petitioner are precisely the sort of testimony that Rule

701 intended to make available to the finder of fact.

The verdict of the jury in the instant case turned upon

the issue of the causation of Petitioner's injuries. There

can be no doubt that substantial rights of your Peti-

tioners turned upon a finding of causation by the jury

and Milo Messenger’s testimony dealt directly with this

issue.

In fact, the jury found the Defendant's product to be

defective, but found that the defect was not the prox-

imate cause of your Petitioner’s injuries.

By excluding the proffered lay opinion testimony of

Milo R. Messenger, the trial court denied to the jury the

opportunity to hear testimony which was extremely pro-

bative on the issue of causation. The jury in the trial

court should have been allowed to consider the excluded

testimony, as such testimony may well have been the

cause of a change in the jury’s verdict on the issue of

causation.

The Court of Appeals for the Third Circuit by affirm-

ing the decision of the trial court, has condoned the error

of the trial court in excluding the lay opinion testimony

of the plaintiff, when under Federal Rule of Evidence 701

Petitioner's proffered testimony was rationally based on

his own preceptions and would have been heipful to a

clear understanding of the testimony and the facts in

issue.

9

In addition, the Court of Appeals has condoned an er-

ror by the trial court which is not harmless error, in that

said error clearly affected the substantial rights of your

Petitioner, and was, given the limited intelligence of your

Petitioner, perhaps the best and only way in which Peti-

tioner could testify as to the facts in issue.

Rule 701 of the Federal Rules of Evidence is entitled

“Opinion Testimony by Lay Witnesses” and provides as

follows:

“If the witness is not testifying as an expert, his

testimony in the forms of opinions or inferences is

limited to those opinions or inferences which are (a)

rationally based on the preception of the witness

and (b) helpful to a clear understanding of his

testimony or the determination of a fact in issue.

Your Petitioner would have testified, if permitted, that

had the truck crane unit manufactured by the Defendant

been equipped with an audible backup warning device, he

would have been able to get out of the way and avoid the

serious injuries he sustained.

This testimony was based upon the preceptions and

observations of the witness as he actually saw the

relative positions of the two vehicles in question, their

distance apart, and the availability of escape routes from

his position between the vehicles. Coupled with this was

Petitioner's knowledge that a backup buzzer meant that

a vehicle was proceeding in reverse (Tr. 87-90). Thus, it

becomes clear that your Petitioner's proffered testi ou

fits squarely within the first confine of Rule 701. In addi-

tion, because of your Petitioner's limited intelligence and

learning disabilities, he suffers from an inability to ex-

press himself, and Rule 701 becomes of even greater im-

portance because it is the best, or perhaps the only way

in which such a person can testify to facts and percep-

tions. This goes to the very heart and purpose of Rule

10

701 which, es are all the Federal Rules of Evidence,

designed to effectively get to the truth.

The excluded opinion testimony of your Petitioner, is

of vital importance to a clear understanding of his

testimony in the determination of the fact in issue. As

stated supra, causation is the key issue in this matter.

Although it is indeed true that Plaintiff's expert witness

offered testimony as to causation, there can be no doubt

that the testimony of the Petitioner himself, the victim,

would have greatly aided the jury on the issue of prox-

imate cause. Such testimony by your Petitioner is exact-

ly what Rule 701 intended to include for the considera-

tion of the finder of fact. To prohibit the inclusion of

such testimony is to deny the very existence for and the

need for a rule such as Federal Rule of Evidence 701.

Your Petitioner, better than anyone else, has first hand

information concerning how he was injured. Your Peti-

tioner stated that he was aware of backup warning

noises on other vehicles and the purpose of such devices.

He further stated that new said devices made a loud

“‘beep-beep-beep”’ sound and that whenever he heard one

of these sounds he stayed out of the way. Your Peti-

tioner testified that he had heard such warning devices

when other vehicles were backing up. Further, your Peti-

tioner testified that just before he was injured he did not

hear or see the truck crane unit backing up and indeed,

he testified that he had no indication it was backing up

until the truck crane struck him. The opinion testimony

of your Petitioner, Milo R. Messenger, was thus, the

most probative source of evidence regarding causation,

and your Honorable Court, by affirming the exclusion of

such evidence, denied the jury the opportunity to hear

the type of testimony which Federal Rule of Evidence

701 was designed to make available to them.

11

By affirming the verdict of the jury in the trial court.

the Third Circuit Court of Appeals has put at naught its

decision in Teen-Ed, Inc. v. Kimball International, Inc.,

620 F.2d 399 (3d Cir. 1980). In the Teen-Ed, Inc., a

retailer sought to introduce testimony of its accountant

as to lost profits due to a wrongful termination of a

distributorship contract. The accountant’s testimony was

offered because he had personal knowledge of the balance

sheets of the Plaintiff's company. The trial court exclud-

ed such evidence, but on appeal, the Third Circuit

vacated a judgment and remanded the proceedings for a

new trial as to damages because such opinion by a lay

witness is permitted by virtue of the provisions of Rule

701. Although the appellee contends that Mr. Messenger

had no personal knowledge of how the accident happen-

ed, such statement flies in the face of the testimony at

trial and in the record which indicates that because there

was no backup warning device on the truck crane unit,

Mr. Messenger could not hear it, and was thus injured.

Indeed, your Petitioner submits that no one has greater

personal knowledge of the facts, conditions, and precep-

tions surrounding the accident itself. Thus, the Third Cir-

cuit Court of Appeals by affirming the verdict of the

jury. effectively nullified its decision in Teen-Ed, Inc.,

and also, Hing Lee v. Gray, 456 F.2d 1276 (3d Cir. 1972).

Further, by affirming the verdict of the jury in the in-

stant case, the Third Circuit Court of Appeals has

created a result inconsistent with that reached by other

circuit courts of appeal which have considered the ad-

missibility of evidence under Federal Rule of Evidence

701. Specifically, in Lang v. Texas and Pacific Railway

Company, 624 F.2d 1275 (5th Cir. 1980), the Fifth Circuit

Court of Appeals considered just such a question. Lang,

was a wrongful death action brought by the widow of a

worker killed on the railroad. At trial, the decedent's

12

foreman was permitted to state his conclusion as to the

cause of the decedent’s death. Upon judgment in favor of

the decedent’s widow, the railroad appealed, and the

Fifth Circuit held that inclusion of the testimony of the

foreman was proper, as said testimony was conducive to

a clear understanding of the issue of causation. Despite

the Appellee’s protestations to the contrary, the views of

your Petitioner, Milo R. Messenger, were based on

observation of actual conditions, and his preceptions

thereof, and your Petitioner should have been permitted

to testify as to what would have happened had a backup

buzzer been made part of the machine which crushed

him.

Similarly, the Eighth Circuit Court of Appeals in

Greenwood Ranches, Inc. v. Skie Construction Company,

629 F.2d 518 (8th Cir. 1980), held that the inclusion of

lay opinion testimony was proper under Federal Rules of

Evidence 701 and 702. In Greenwood, supra, Plaintiff

sued ‘or damages for negligence and breach of contract

for failure to supply an irrigation system for the growing

of crops. At trial, Plaintiff presented testimony concern-

ing the value of the crop losses for several years. After a

verdict for Plaintiff, Defendant appealed, and the Eighth

Circuit Court of Appeals indicated that the opinion

testimony on the probable value of the crop loss was

properly admitted. Specifically, the Court held that:

“If a witness is not testifying as an expert, his

testimony in the form of opinions or inferences need

only be rationally based on his preception and

helpful to the determination of a fact in issue.

Thus, it can be clearly seen that the letter and spirit of

Federal Rule of Evidence 701 was adhered to in that

case.

13

The conclusion of the Third Circuit Court of Appeals

that the exclusion if it was error, and Petitioner submits

it was, was harmless should be reconsidered by this

Court. By excluding the lay opinion testimony of Milo

Messenger, the trial court prevented the jury from hear-

ing testimony, from the best possible source which was

extremely probative on the issue of causation. In addi-

tion, the trial court in ruling the exclusion of such

evidence left unavailable to the jury important informa-

tion for their use in considering causation.

There can be no question, that the substantial rights of

your Petitioners turned upon the issue of causation and

the finding of proximate cause by the jury. Despite the

fact that your Petitioner adduced evidence from an ex-

pert witness as to the issue of causation, the jury should,

at the very least, have been allowed to consider the ex-

cluded testimony as such testimony would have come

from the best possible source. Further, when one con-

siders the mental handicaps under which your Petitioner

exists, the exclusion of such testimony deprived your

Petitioner, Milo R. Messenger, of the clearest and best

method to convey his testimony to the jury regarding

causation.

Your Petitioners respectfully submit that the exclusion

of said opinion testimony by the trial court is not only

error, but is of such magnitude as to require the grant of

a new trial to your Petitioners.

In affirming the decision of the trial court, the Court of

Appeals has sanctioned a blatant departure from not on-

ly its own decisions, but the decisions of other federal

circuit couris of appeal. This departure cries out for an

exercise of this Honorable Court’s power of supervision.

14

Conclusion

WHEREFORE, we respectfully request that your

Honorable Court grant a Writ of Certiorari to the Peti-

tioners, and reverse the judgment of the Third Circuit

Court of Appeals in this case, and remand the case for a

trial on the merits of causation alone, thus, granting

your Petitioner his full and fair day in court.

Respectfully submitted,

LOUIS M. TARASI, JR.

TARASI & TIGHE

Attorneys for Petitioners

15

APPENDIX A

Memorandum Opinion and Order of the United

States District Court for the Western

District of Pennsylvania Dated

December 31, 1980

IN THE UNITED STATES DISTRICT COURT

For the Western District of Pennsylvania

MILO R. MESSENGER and CONNIE M.

MESSENGER, his wife,

Plaintiffs,

v.

BUCYRUS-ERIE COMPANY, a corporation.

Defendant.

Civil Action No. 79-1684

In this product liability case, the jury found there was

a defect in the truck-crane (hereinafter crane) manufac-

tured by the defendant, Bucyrus-Erie Company, ie. no

back-up buzzer or back-up lights were affixed to the

crane; but the jury also found that the defect was not a

proximate cause of the accident which caused injuries to

the plaintiff, Milo R. Messenger. Judgment was entered

in favor of the defendant.

The plaintiffs move for a new trial and judgment non

obstante veredicto.

Five reasons were assigned for new trial. Only number

5 was presented at oral argument and in plaintiffs’ brief:

“5. The court erred in failing to allow plaintiff to

offer opinion evidence by lay witnesses (sic) on the

issue of causation.”

16

Appendix A—Memorandum Opinion and Order of the

United States District Court for the Western District

of Pennsylvania Dated December 31, 1980.

In our opinion, the motion for new trial should be

denied.

Prior to the trial, the defendant presented a Motion in

Limine' requesting an order that the plaintiff “not be

allowed to express self-serving speculative opinions such

as those contained on pages 56 and 87 of his deposi-

tion.

On pages 56 and 57 of his deposition, the plaintiff

stated:

“If it had had a back up light, I wouldn't have got

hurt. I would have been under that trailer so fast

you wouldn't know what happened.

On page 87, the plaintiff stated:

“If the crane had a back up bell and a light on it I

would have never been hurt today.”

Previously, the court had concluded that such evidence

was inadmissible.’

Before the jury was sworn, counsel for plaintiffs re-

quested the court to permit the plaintiff, Milo R.

Messenger, to testify as he had done in his deposition.

The court agreed to reconsider its conclusion that the

evidence was inadmissible (T. p. 10). Immediately after

the plaintiff was sworn as a witness, his counsel re-

quested a side bar conference and again proposed to

Motion in Limine filed September 18, 1980.

Id.

* Transcript of Proceedings on Motion for Summary Judgment and

Motion for Sanctions filed May 28, 1980, page 58.

17

Appendix A—Memorandum Opinion and Order of the

United States District Court for the Western District

of Pennsylvania Dated December 31, 1980.

respect to what he would have done had there been a

back-up buzzer or warning device on that hydrocrane

truck which struck him on October 6, 1977 (T. p. 37).

The court still being of the opinion that the testimony

was speculative and self-serving and not opinion evidence

as provided for in Rule 701, Federal Rules of Evidence,

sustained the objection of defense counsel to the inad-

missibility of the proffered evidence.‘

Rule 701 limits opinion testimony of a lay witness

allowing it only when it is rationally based on the percep-

tion of the witness. The offer, prior to the witness's

testimony, was not based on any of his “perceptions”

nor was it “helpful to a clear understanding of his

testimony since the plaintiff had not testified when the

offers were made. Even expert testimony is incompetent

and may not be admitted into evidence if the opinion is

based on mere conjecture. Hussey v. May Department

Stores, Inc., 357 A.2d 635, 637 (Pa. Super. 1976).

Thereafter, the plaintiff testified that before he walked

between the crane and the trailer, he was aware that the

crane was in the process of being backed up to the

trailer; that it was stopped three or four feet from the

back of the trailer (T. pp. 57, 61); that when he looked

through the space between the trailer and the crane, he

did not see the crane backing up; that he did not

Rule 701, Federal Rules of Evidence, provides:

“If the witness is not testifying as an expert, his testimony in

the form of opinions or inferences is limited to those opinions or

inferences which are (a) rationally based on the perception of the

witness and (b) helpful to a clear understanding of his testimory

or the determination of a fact in issue.

18

Appendix A—Memorandum Opinion and Order of the

United States District Court for the Western District

of Pennsylvania Dated December 31, 1980.

hear the crane backing up; that he was not aware

of any indication that the crane was backing up; and,

that he could not remember seeing James Fisher, the

flagman, there at that time (T. p. 72).

He also testified that he had walked between the

trailer and the crane twice (T. p. 69). On the second trip,

he was pinned between the crane and the truck (T. p. 70).

The excluded testimony of the plaintiff was offered

before he testified. It was not based on his perceptions of

the factual situation which later appeared from his

testimony. At the time it was offered, in the court’s

opinion, the testimony was a pure conclusion based on

speculation, was self-serving, and contained no adequate

basis of factual support. The conclusion was not based

on evidence of any perceptions of the plaintiff.

The cases cited by the plaintiff were ably analyzed in

the defendant 's briefs and were shown not to be on

point.

Moreover, the plaintiffs’ expert witness Dr. Romauldi,

expressed an opinion that the cause of the accident was

the absence of an audible warning system on the back of

the truck [crane] that would indicate loudly, clearly, and

unmistakably signal that the truck [crane] is backing

up (T. pp. 165-166).

The doctor was also of the opinion within the limits of

engineering certainty, that the accident would not have

happened had there been a back-up—audible back-up

warning signal. I think it is basically logical common

sense (T. pp. 166-167).

19

Appendix A—Memorandum Opinion and Order of the

United States District Court for the Western District

of Pennsylvania Dated December 31, 1980.

Motion for Judgment NOV

This motion was not argued or briefed by plaintiffs.

It appears there is sufficient evidence of record by

which the jury could have properly found that the defect

in the crane was not a proximate cause of the accident.

Whether or not the defect was a proximate cause is a

matter within the comprehension and province of the

jury.

On cross-examination, the plaintiff testified he knew

the crane was to be backed within a few inches of the

trailer so that they can properly operate the crane and

load it (T. p. 95), and that he never heard backing up

bells on the crane (T. p. 97). He was impeached by hav-

ing admitted in his deposition that the flagman, Fisher,

told him to “walk through. If this were found to be a

fact, it was the negligence of the flagman which was a

proximate cause of the accident.

Also a witness for the defense, Willie Jones, testified

that he transported plaintiff to the hospital and discuss-

ed the accident with him:

“Q. Can you tell me what he [plaintiff] said to

you about the accident?

A. Well, I asked him how could he let something

like that happen, or how did it manage to come

about. He said Willie, I really don’t know, it all hap-

] said I was jacking up a trailer

115

1

.

5

5

:

at

fl

He said he stopped Corby, and he motioned for me

come on through. And he said, before I realized it

8

20

Appendix A—Memorandum Opinion and Order of the

United States District Court for the Western District

of Pennsylvania Dated December 31, 1980.

the crane was moving back against me, before I had

a chance to get out, it was on me.

Q. That was all that he said?

A. Right.

The cross-examination of the plaintiff; his impeach-

ment; his statement to Willie Jones that the accident

was caused by the negligence of the flagman, whose

directions the plaintiff followed; and, that plaintiff did

not perceive that the crane was moving backwards was

sufficient evidence for the jury to find that the defect in

the crane was not the proximate cause of the plaintiff's

injuries.

Even from plaintiff's direct testimony it could be

found that the plaintiff knowingly placed himself in an

obviously dangerous position by exiting from the back of

the trailer without looking at the crane three or four feet

away, which he knew was about to be backed up to

within a few inches of the trailer.

In our opinion, there was sufficient evidence upon

which the jury could find that the defect in the crane

was not a proximate cause of the plaintiff's injuries.

An appropriate order will be entered denying the Mo-

tion for New Trial and Judgment NOV.

T. pp. 280-281.

21

Appendix A—Memorandum Opinion and Order of the

United States District Court for the Western District

of Pennsylvania Dated December 31, 1980.

Dated: December 31, 1980

RABE F. MARSH

United States District Judge

cc: Robert N. Isacke, Jr., Esq.

Tarasi & Tighe

510 Third Avenue

Pittsburgh, PA 15219

Attorneys for Plaintiffs

(certified mail)

Edward C. Schmidt, Esq.

Rose, Schmidt, Dixon, Hasley,

Whyte & Hardesty

900 Oliver Building

Pittsburgh, PA 15219

Attorneys for Defendant

(certified mail)

Appendix A—Memorandum Opinion and Order of the

United States District Cour: for the Western District

of Pennsylvania Dated December 31, 1980.

ORDER OF COURT

IN THE UNITED STATES DISTRICT COURT

For the Western District of Pennsylvania

MILO R. MESSENGER and CONNIE M.

MESSENGER, his wife,

Plaintiffs,

v.

BUCYRUS-ERIE COMPANY,

a corporation,

Defendant.

Civil Action No. 79-1684

AND NOW, to-wit, this 3lst day of December, 1980,

after oral argument and after due consideration of the

briefs of the parties,

IT IS ORDERED, ADJUDGED AND DECREED

that the motions of the plaintiffs for a new trial and

judgment NOV be and the same hereby are denied.

RABE F. MARSH

United States District Judge

23

Appendix A—Memorandum Opinion and Order of the

United States District Court for the Western District

of Pennsylvania Dated December 31, 1980.

cc: Robert N. Isacke, Jr., Esq.

Tarasi & Tighe

510 Third Avenue

Pittsburgh, PA 15219

Attorneys for Plaintiffs

(certified mail)

Edward C. Schmidt, Esq.

Rose, Schmidt, Dixon, Hasley,

Whyte & Hardesty

900 Oliver Building

Pittsburgh, PA 15219

Attorneys for Defendant

(certified mail)

24

APPENDIX B

Judgment Order of the United States

Court of Appeals for the Third Circuit

Dated September 15, 1981

UNITED STATES COURT OF APPEALS

For the Third Circuit

No. 81-1268

MILO R. MESSENGER, an individual, and

CONNIE M. MESSENGER, his wife,

Appellants,

v.

BUCYRUS-ERIE COMPANY, a Corporation, and

INTERNATIONAL HARVESTER COMPANY,

a Corporation.

(D.C. Civil No. 79-1684)

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF PENNSYLVANIA

Submitted Under Third Circuit Rule 12(6)

September 14, 1981

Before: GIBBONS and HUNTER, Circuit Judges

and GERRY, District Judge*

* Hon. John F. Gerry, United States District Judge for the District of

New Jersey, sitting by designation.

25

Appendix B—Judgment Order of the United States Court

of Appeals for the Third Circuit Dated

September 15. 1981.

LOUIS M. TARASI, JR., ESQ.

ROBERT N. ISACKE, JR., ESQ.

MARTIN F. P. VINCI, III, ESQ.

TARASI & TIGHE

510 Third Avenue ,

Pittsburgh, PA 15219

Attorneys for Appellants

EDWARDC. SCHMIDT, ESQ.

JANE A. WATKINSON, ESQ.

ROSE, SCHMIDT, DIXON,

HASLEY, WHYTE &

HARDESTY

900 Oliver Building

Pittsburgh, PA 15222

Attorneys for Appellee,

Bucyrus-Erie Company

Milo R. Messenger appeals from a judgment in favor of

defendant Bucyrus-Erie Company in a products liability

case, on a jury verdict in favor of the defendant. He con-

tends a new trial is warranted because the trial court, in

violation of Rule 701, Federal Evidence Rules, excluded his

lay opinion testimony. If the exclusion was error it was

harmless since the opinion was cumulative of expert

opinion testimony which was admitted.

26

Appendix B—Judgment Order of the United States Court

of Appeals for the Third Circuit Dated

September 15, 1981.

It is ORDERED and ADJUDGED that the judgment of

the district court is affirmed. Costs are taxed in favor of ap-

pellee.

BY THE COURT,

JOHN J. GIBBONS

Circuit Judge

Attest:

SALLY MRVOS

Clerk

Dated: Sep 15 1981

27

APPENDIX C

Order of the United States Court of Appeals

for the Third Circuit Denying Petition for

Rehearing Dated October 9, 1981

UNITED STATES COURT OF APPEALS

For the Third Circuit

No. 81-1268

MILO R. MESSENGER, an individual, and

CONNIE M. MESSENGER, his wife,

Appellants,

v.

BUCYRUS-ERIE COMPANY, a Corporation, and

INTERNATIONAL HARVESTER COMPANY,

a Corporation.

(D.C. Civil No. 79-1684)

SUR PETITION FOR REHEARING

PRESENT: SEITZ, Chief Judge, ALDISERT, ADAMS,

GIBBONS, HUNTER, GARTH,

HIGGINBOTHAM and SLOVITER,

Circuit Judges.

The petition for rehearing filed by Appellants in the

above entitled case having been submitted to the judges

who participated in the decision of this court and to all

the other available circuit judges of the circuit in regular

active service, and no judge who concurred in the deci-

28

Appendix C—Order of the United States Court of

Appeals for the Third Circuit Denying Petition

for Rehearing Dated October 9, 1981.

sion having asked for rehearing, and a majority of the

circuit judges of the circuit in regular active service not

having voted for rehearing by the court en banc, the peti-

tion for rehearing is denied.

BY THE COURT,

JOHN J. GIBBONS

Judge

Dated: October 9, 1981

ons

5 «Supreme Court. U

PILED

i 10 1962

No. 81-1136 —

In the

Supreme Court of the United States

October Term, 1980

MILO MESSENGER, an individual, and

CONNIE MARIE MESSENGER, his wife,

Petitioners,

v.

BUCYRUS-ERIE COMPANY, a corporation,

Respondent.

On Wait oF CERTIORARI TO THE UNITED STATES

CourT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO REVIEW THE DECI-

SION OF THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Russet E. HuTcuison Eso. Epwarp C. Scumipt, Esq.

BUCYRUS-ERIE COMPANY (counsel of record)

South Milwaukee, WI 53172 TEMPLETON SMITH, JR.

Of Counsel ROSE, SCHMIDT, DIXON & HASLEY

900 Oliver Building

Pittsburgh, PA 15222

(412) 434-8592

Attorneys for Respondent

en ——

Financial Press Corporation, Pittsburgh

TABLE OF CONTENTS

_Page

. 6.6.060060000006000680608% ii

SUMMARY OF ARGUuENTů/ . . U

e bees sessel 000 60 U

eee ! ! esse e 00 1

1. The Evidentiary Ruling Complained of was a

Matter of Trial Court Discretion ............. 2

2. The Exclusion of the Messenger Testimony,

even if erroneous, was Harmless Error......... 3

3. The Decision of the court Below does not Con-

flict with Third Circuit Precedent ............. 6

4. The Decision of the Court Below does not Con-

flict with the Decision in Other Circuits on the

rere eee eee eee e 00

o., o.. .....

ii

TABLE OF AUTHORITIES

CASES

Joseph T. Ryerson & Son, Inc. v. H. A.

Crane & Brother, Inc., 417 F.2d

1263 (3d Cir. 96 00ſu-i .

Greenwood Ranches, Inc. v. Skie Construction

Co., Inc., 629 F.2d 518 (8th Cir. 1980)..........

Hing Lee v. Gray, 456 F.2d 1276 (3d Cir. 1972)......

Lang v. Texas & Pacific Railway Company,

624 F.2d 1275 (Sth Cir. 9 80)0ʒj

Randolph v. Collectramatic, Inc.,

590 F.2d 844 (10th Cir. 1979ù0)))))))

Teen-Ed, Inc. v. Kimball International, Inc.,

620 F.2d 399 (3d Cir. 1980U)):/ ee eees

Woods v. National Life and Accident Insurance Co.,

380 F.2d 843 (3d Cir. 1967) 0 777

Lewis v. Mellor, 259 Pa. Super. Ct. 509,

393 A.2d 944 (1978)))) cece cece e cece ee eeee

OTHER AUTHORITIES

r ds ceuendebioneese

.

Z

SUMMARY OF ARGUMENT

After unsuccessful attempts at the trial and appellate

court levels, petitioners are seeking review by this court of an

evidentiary ruling made by a trial judge. In support of their

petition for Writ of Certiorari petitioners allege that the deci-

sion of the Court of Appeals upholding the trial judge’s ruling

conflicts with other decisions of that Court as well as those of

other circuits and that their petition presents an important

question of federal law.

As will be demonstrated hereinafter, however, the Peti-

tion for Writ of Certiorari in this case seeks review of a discre-

tionary ruling by a trial judge which, even if it was in error, was,

at worst, harmless error. Moreover, the decision of the Appel-

late Court affirming the Trial Court conflicts with neither

Third Circuit precedent nor that of any other circuit. For these

reasons petitioners’ Petition for Writ of Certiorari should be

denied.

ARGUMENT

Background

In this products liability action, the jury found that a truck

crane manufactured by defendant/respondent Bucyrus-Erie

Company was defective, but that the defect in the truck crane

was not the proximate cause of the plaintiff/ petitioner’s injur-

ies. At trial, upon respondent’s motion in limine, the United

States District Court for the Western District of Pennsylvania

did not permit petitioner Milo R. Messenger to present his

self-serving speculation that he would not have sustained

injury if the truck crane in question had been equipped with an

audible back-up warning device. Petitioners sought to intro-

duce such speculation as lay opinion testimony pursuant to

Rule 701 of the Federal Rules of Evidence.

Petitioners thereafter sought a judgment n.o.v. and a new

trial before the District Court, appealed to the United States

2

Court of Appeals for the Third Circuit and requested a rehear-

ing before that Court, all on the ground that the Messenger

testimony was improperly excluded from evidence. All of these

attempts were unsuccessful. The Trial Court, in denying the

Motion for New Trial and Judgment N.O.V., noted (at 507 F.

Supp. 41, 44) that despite petitioners’ expert testimony con-

cerning causation, there was still sufficient evidence upon

which a jury could find that the defect in the truck crane was

not the proximate cause of the petitioners’ injuries. Moreover,

on appeal, the Court of Appeals held the exclusion of the

Messenger testimony, even if error, to be harmless error.

Petitioners now appear before this Honorable Court seek-

ing a writ of certiorari on two purported grounds. First, peti-

tioners argue that the decision of the Court of Appeals in

upholding the exclusion of the Messenger opinion testimony is

in conflict with both the prior decisions of the Third Circuit

Court and those of the Courts of Appeals of numerous other

circuits. Additionally, petitioners assert that the question of

whether the Messenger opinion testimony should have been

admitted is an important question involving the new Federal

Rules of Evidence which has not been decided by this Court.

As will be demonstrated hereinafter, however, four

important factors mandate the denial of certiorari to petition-

ers.

1. The Evidentiary Ruling Complained of was a Matter

of Trial Court Discretion

Initially, with regard to petitioners’ second ground for the

granting of certiorari, the issue of whether the Messenger

testimony should have been excluded is not “an important

question of federal law which has not been, but should be,

settled by this Court.” Sup. Ct. R. 17.1(c). Rather, petitioners

are seeking this Court’s review of a ruling which was a matter of

trial court discretion and reviewable only as such. Randolph v.

3

Collectramatic, Inc., 590 F.2d 844 (10th Cir. 1979); Lewis v.

Mellor, 259 Pa. Super. Ct. 509, 393 A.2d 944 (1978). In Ran-

dolph v. Collectramatic, Inc., the Court of Appeals for the

Tenth Circuit stated, with regard to the admission of lay opin-

ion evidence:

The question of whether or not a lay witness is quali-

fied to testify as to any matter of opinion is a preliminary

determination within the sound discretion of the trial

court whose decision must be upheld unless shown to be

clearly erroneous or a clear result of an abuse of judicial

discretion. (Citing.) Cardwell v. Chesapeake & Ohio Ry.

Co., 504 F.2d 444, 448 (6th Cir. 1974); Spitzer v. Stitch-

man, 278 F.2d 402, 409 (2d Cir. 1960).

590 F.2d at 847. Thus, the decision to exclude the opinion

testimony of petitioner Milo R. Messenger in the present case

was within the sole discretion of the United States District

Court for the Western District of Pennsylvania. Such a matter

of Trial Court discretion does not rise to the level of “an

important question of federal law which has not been, but

should be, settled by this Court.” Indeed, inasmuch as a Trial

Court's ruling on the admission of lay opinion evidence must

be upheld “unless clearly erroneous or an abuse of judicial

discretion,” Randolph, supra, at 847, a decision by this Honor-

able Court as to the admissibility of Milo R. Messenger’s

opinion testimony would not provide any settled precedent in

the area of the Federal Rules of Evidence.

2. The Exclusion of the Messenger Opinion Testimony,

if erroneous, was Harmless Error

In addition to the fact that the order complained of was

discretionary in nature, petitioners are seeking this Court's

review of a Trial Court’s refusal to admit testimony which

would, at best, have been cumulative and would have added

nothing to the substance of petitioners’ Complaint. Thus even

if, contrary to the holdings of both the Trial and Appellate

4

Courts below, the testimony in question was improperly

excluded from evidence, such exclusion would be harmless

error. Indeed, this conclusion was reached by the Court of

Appeals for the Third Circuit in its Judgment Order of Sep-

tember 15, 1981 affirming the judgment of the District Court.

There, the Court stated:

II the exclusion [of the testimony] was error it was

harmless since the opinion was cumulative of expert opin-

ion testimony which was admitted.

The testimony which petitioners were unsuccessful in

introducing before the Trial Court involved petitioner Milo

Messenger’s speculation as to what he would have done had the

truck crane manufactured by defendant which struck him been

equipped with a backup warning buzzer. Significantly, how-

ever, Milo Messenger’s self-serving speculation concerning

causation would have been cumulative of the testimony of

petitioners’ expert witness, Dr. Romauldi. At Page 165-167 of

the Trial Transcript, Dr. Romauldi testified:

A: My opinion is that given that Mr. Messenger had

normal hearing, that the accident, the cause of the

accident was the absence of an audible warning sys-

tem on the back of the truck that would indicate—

loudly, clearly and unmistakably, signal that the

truck is backing up.

R * *

A: In my opinion, within the limits of engineering cer -

tainly, that accident would not have happened had

there been a back-up—audible back-up warning sig-

nal. | think it is basically logical common sense.

Furthermore, although petitioners were not permitted to

introduce the speculations of Milo Messenger, they were, at

Page 90 of the Trial Transcript, permitted to introduce the

following testimony of Mr. Messenger regarding his actual

5

experience with machinery equipped with backup warning

buzzers:

Q: Also while you were working at ASSAD Iron &

Metal you heard these township trucks?

A: Yes.

Q: What did you hear?

A: The “beep, beep, beep” noise on the back of them,

when they backed up.

When did you hear that?

When they backed up.

What, if anything, did you do when you heard that?

Stayed out of their way.

In light of the testimony of Dr. Romauldi and that of petitioner

Milo Messenger concerning his past experience with machin-

ery having warning buzzers, it is apparent that the inclusion of

Messenger's additional and cumulative testimony concerning

causation would have had no impact on the jury’s considera-

tion of the case.

Rule 61 of the Federal Rules of Civil Procedure states:

No error in either the admission or the exclusion of

evidence and no error or defect in any ruling or order or in

anything done or omitted by the court... is ground for

granting a new trial or for setting aside a verdict. . . unless

refusal to take such action appears to the court inconsis-

tent with substantial justice. The court at every stage of the

proceeding must disregard any error or defect in the pro-

ceeding which does not affect the substantial rights of the

parties.

Clearly, if testimony is cumulative, its exclusion must be con-

sidered harmless. See Joseph T. Ryerson & Son, Inc. v. H.A.

Crane & Brother, Inc., 417 F.2d 1263 (3d Cir. 1969), and

Woods v. National Life and Accident Insurance Co., 380 F.2d

843 (3d Cir. 1967). Because petitioners’ counsel adduced tes-

timony from Mr. Messenger concerning his experience with

FOP

6

backup warning buzzers and from an expert concerning causa-

tion, it is obvious that the proferred opinion testimony of Milo

Messenger would have been, at best cumulative and, thus, that

its exclusion, even if erroneous, was harmless error.

3. The Decision of the Court Below Does Not Conflict

With Third Circuit Precedent

Petitioners’ Petition for Writ of Certiorari, after discuss-

ing the nature of the opinion testimony which Milo R. Mes-

senger would have presented at trial argues that the decision to

exclude the Messenger testimony is contradictory to the results

in the Third Circuit cases of Teen-Ed, Inc. v. Kimball Interna-

tional, Inc., 620 F.2d 399 (3d Cir. 1980) and Hing Lee v. Gray,

456 F.2d 1276 (3d Cir. 1972). An examination of those cases,

however, reveals that the lay opinion testimony admitted in

each of them is clearly distinguishable from that sought to be

introduced by petitioners herein.

In Hing Lee v. Gray, supra, the defendant had stopped his

car in the center of a highway, where it was struck from behind

by the plaintiff's vehicle. At trial on the issue of the defendant's

alleged negligence, defendant testified that he lost control of

his car due to a mechanical defect in the steering system. He

also testified that he had had a similar mechanical problem

with the car on a prior occasion and that repairs had been

made. In support of this testimony he offered a repair bill in

evidence. On appeal from a verdict for the defendant, the

Court of Appeals for the Third Circuit held that the Trial

Court properly admitted defendant's testimony with regard to

his prior experience with his car's steering system. Signifi-

cantly, the defendant in Hing Lee sought only to testify to his

perception of an event which had actually occurred: his power

steering system difficulties. He did not try to offer testimony

about what action he would have taken at the time of the

accident had his steering system been any different than it was.

7

In the instant case, petitioner Messenger was not attempt-

ing to give his opinion as to what actually happened based

upon his past personal perception, but was attempting to

speculate as to what would have happened in a hypothetical

situation.

Likewise, the case of Teen-Ed, Inc. v. Kimball Interna-

tional, Inc., supra, cited by plaintiffs, is inapposite here. In that

breach of contract case, the plaintiff, a retailer, sought to

introduce the testimony of its accountant as to the amount of

profits it had lost as a result of the wrongful termination of its

distributorship contract by the defendant manufacturer.

The District Court refused to allow the plaintiff to intro-

duce the testimony of the accountant on the ground that he had

not been qualified as an expert witness and, therefore, was not

competent to give opinion evidence.

On appeal, the Court of Appeals for the Third Circuit held

that the District Court had erred in refusing to admit the

accountant's testimony. The Court noted:

The expression of opinions 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 wit-

ness perception. This qualification simply reflects a

recognition of the limitation embodied in Fed. R. Evid.

602, that a witness must have “personal knowledge of the

matter” in order to testify to it.

620 F.2d at 403 (emphasis added, Footnote omitted). The

Court concluded that the accountant's personal knowledge of

the plaintiff's balance sheets was sufficient to qualify him as an

opinion witness with regard to the 2mount of profits actually

lost by the plaintiff during a period covered by the balance

sheets.

Unlike the plaintiff in the instant case, the plaintiff in

Teen-Ed sought only to introduce evidence based on a wit-

ness’s perception of events which had actually occurred.

4. The Decision of the Court Below Does Not Conflict

With the Decisions in Other Circuits on the Same

Issue

An examination of the cases in other circuits cited by

petitioners also shows those cases to be in complete harmony

with the decision of the Third Circuit in the instant case.

In Lang v. Texas & Pacific Railway Company, 624 F.2d

1275 (Sth Cir. 1980), cited by petitioners, the widow of a

railroad switchyard worker brought a wrongful death action

against the railroad and was permitted to introduce the testi-

mony of the decedent's foreman that he had observed slippery

ground and poor lighting conditions at the scene of the dece-

dent's death and that either of these conditions could have been

the possible cause of the decedent's being struck by a group of

freight cars.

The Court of Appeals upheld the introduction of the

evidence. In so doing, however, it noted that the witness had

examined the scene of the accident shortly after it occurred. It

is significant, then, that the views of the witness in Lang as to

the possible causes of the decedent’s death were based on the

witness's observations of actual, as opposed to hypothetical,

conditions.

Moreover, it is significant that the witness in Lang was

permitted only to testify that the slippery ground or the poor

lighting could have caused the plaintiff's decedent's death. He

did not offer any opinion that one or the other of these condi-

tions actually was the cause—unlike the offer here.

Similarly, the case of Greenwood Ranches, Inc. v. Skie

Construction Co., Inc., 629 F.2d 518 (8th Cir. 1980), cited by

petitioners offers no contrast to the decision of the Court of

Appeals for the Third Circuit in this case. In Greenwood, a

farm owner sued the supplier of an irrigation system for the

damage to his crops caused by the failure of the system. At

9

trial, the Court refused to allow the plaintiff to testify as to his

opinion of the value of the crops which were lost through the

failure of the irrigation system.

On appeal, the Court held that, based on his past expe-

rience, the plaintiff should have been allowed to testify as to the

value of the crops waich he had lost. The basis for such

testimony clearly was his actual experience with raising of the

type of crops in question and his experience in the marketplace

in prior years. The testimony would, thus, have been grounded

in fact as opposed to mere speculation. Assuredly, such a

holding does not contradict the ruling in this case forbidding

petitioner Milo Messenger from testifying as to what his reac-

tions would have been in a situation which he had not, as

discussed above, previously experienced.

10

CONCLUSION

Inasmuch as the Petition for Writ of Certiorari of Milo R.

Messenger and Connie M. Messenger sets forth no adequate

grounds for the granting of certiorari by this Honorable Court,

and there are several grounds for the denial of such a writ,

respondent respectfully requests that that petition be denied

and that the costs of these proceedings be assessed upon peti-

tioners.

Respectfully submitted,

ROSE, SCHMIDT, DIXON & HASLEY

Templeton Smith, Jr., Esq.

900 Oliver Building

Pittsburgh, Pennsylvania 15222-5369

(412) 434-8600

Attorneys for Respondent

Russell E. Hutchison, Esq.

Of Counsel