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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 1982
- **Citation:** 455 U.S. 944

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0921%3A0. Public record. Not legal advice.