On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 95-cv-2806) Argued October 23, 1997
Before: Mansmann, Greenberg And ALARCON*fn1 , Circuit Judges
The opinion of the court was delivered by: Alarcon, Circuit Judge.
Michael T. Wilburn ("Wilburn") was injured when he was swept off the deck of the tug, the Enterprise, by a huge wave during a storm. He filed an action against his employer, Maritrans GP Inc. ("Maritrans") to recover damages for negligence pursuant to the Jones Act, 46 U.S.C. § 688, and for the unseaworthiness of the Enterprise under general maritime law.
At trial Wilburn did not present any expert testimony in support of his theories of liability. The jury found that Maritrans was negligent and that the Enterprise was unseaworthy. The district court granted Maritrans's motions for judgment as a matter of law and for a new trial on the basis that the evidence was insufficient because Wilburn failed to present expert testimony. The court ruled that the facts and circumstances of the case were beyond the common knowledge and experience of the jurors. The court also found that the evidence was insufficient to support the jury's award of damages.
We conclude that an expert's testimony was not required to support the jury's finding of liability as to one of Wilburn's theories of negligence. The failure to require the jury to return special verdicts, however, precludes us from determining which theory or theories of negligence and unseaworthiness were adopted by the jury. We also hold that the district court erred in excluding lay testimony. Accordingly, we reverse the judgment as a matter of law and we affirm the district court's order granting a new trial as to liability. Regarding damages, we hold that the evidence was sufficient to show a narrowing of Wilburn's economic opportunities, however, it was insufficient to support the jury's award of damages. We therefore reverse the district court's judgment as a matter of law and affirm the order granting a new trial with respect to damages.
Wilburn seeks reversal of the district court's orders on the following grounds:
One. The district court abused its discretion in precluding lay witnesses from presenting opinion testimony based on facts within their personal knowledge.
Two. The district erred as a matter of law in ruling that expert testimony was required because a rational jury could not comprehend the primary facts and draw a correct conclusion regarding whether the captain of the Enterprise acted negligently and whether the Enterprise was seaworthy.
Three. The district court erred in concluding that the evidence was insufficient to support the jury's award of two million dollars in damages.
We discuss each contention and the facts pertinent thereto under separate headings.
A. Judgment as a Matter of Law
During trial, Wilburn's counsel requested the court's permission to introduce the lay opinion of Charles Stanley, the barge captain, and Wilburn regarding the cause of Wilburn's injuries based on their experience working on tugs and barges. Maritrans's counsel objected on the ground that Wilburn and Stanley had not been listed or identified as experts as required by Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure. Defense counsel argued that Stanley and Wilburn's opinion testimony was precluded by the court's April 18, 1996 pretrial order. The order reads as follows:
IT IS HEREBY ORDERED that plaintiff is precluded from offering at the time of trial of this matter, any expert opinions and other expert evidence which have not been provided to defendant by March 15, 1996.
The order was issued in response to Maritrans's motion to compel discovery filed on November 20, 1995 and its January 23, 1996 motion in limine for an order precluding Wilburn from offering any expert opinions or other expert evidence.
The district court sustained Maritrans's objection to the introduction of the opinions of Wilburn's lay witnesses because they had not been listed as experts in response to the district court's pre-trial order. In so ruling, the district court appears to have concluded that Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure compels disclosure of the fact that an identified lay witness will also testify regarding his or her opinion concerning a fact in issue. To the extent that the district court's exclusion of the opinions of lay witnesses was based on an interpretation of Rule 26(a)(2)(A), our review is plenary. See International Union, UAW v. Mack Trucks, Inc., 917 F.2d 107, 110 (3d Cir. 1990). We must also decide whether the district court's ruling was consistent with Rule 701 of the Federal Rules of Evidence. We review independently a district court's interpretation of Rule 701. See Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190, 1194 (3d Cir. 1995); U.S. v. Furst, 886 F.2d 558, 571 (3d Cir. 1989).
Pursuant to Rule 26(a), a party must disclose certain evidence to the other parties in the action without awaiting a discovery request. A party is expressly required to disclose "the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence." Fed. R. Civ. P. 26(a)(2)(A). "If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions." Fed. R. Civ. P. 37(a)(2)(A).
Rule 702 of the Federal Rules of Evidence provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or 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 or otherwise.
Fed. R. Evid. 702. Wilburn and Stanley were not called by the plaintiff to testify as expert witnesses. Wilburn's counsel informed the district court that as lay witnesses "hey will render opinion evidence about this situation, but they are not experts. They have not been retained as such nor are they specially in this case, because they give expert testimony."
Rule 701 of the Federal Rules of Evidence permits a lay witness to provide opinion evidence. Rule 701 states:
If the witness is not testifying as an expert, the witness' 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 the witness' testimony or the determination of a fact in issue.
Rule 701 permits evidence that is considered " `shorthand renditions' of a total situation, or . . . statements of collective facts." Asplundh at 1196 (internal quotation marks and citations omitted). These are situations where "the differences between fact and opinion blur and it is difficult or cumbersome for the examiner to elicit an answer from the witness that will not be expressed in the form of an opinion." Id. at 1198.
There is, however, a trend towards an even more liberal construction of Rule 701. "[Rule 701] jurisprudence has expanded beyond this core area to permit lay persons to express opinions that are not shorthand statements of fact, so long as the personal knowledge, rational basis, and helpfulness standards of Rule 701 are met." Id. The rational basis prong requires that the witnesses' opinion be "grounded in either experience or specialized knowledge." Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190, 1198 (3d Cir. 1995).
Today, " lay witness with first hand knowledge can offer an opinion akin to expert testimony in most cases, so long as the trial Judge determines that the witness possesses sufficient and relevant specialized knowledge or experience to offer the opinion." Id. at 1201-02. "The essential difference between [Rule 701 and 702 testimony] . . . is that a qualified expert may answer hypothetical questions." Teen-Ed, Inc. v. Kimball Int'l Inc., 620 F.2d 399, 404 (3d Cir. 1980). Moreover, Rule 704 of the Federal Rules of Evidence authorizes the admission of the opinion of lay witnesses regarding the ultimate issues to be decided by the trier of fact. Fed. R. Evid. 704.
Rule 26(a)(2) of the Federal Rules of Civil Procedure does not require a party to provide the name of any person who may be used at trial to present evidence under Rule 701. Because disclosure of a lay witness's opinion testimony is not required by Rule 26(a)(2)(A), the district court lacked the power to sanction Wilburn solely because he failed to disclose the fact that he and Stanley would be testifying regarding their opinions as to a fact in issue.
This court confronted a similar situation in Teen-Ed, Inc. v. Kimball Int'l Inc., 620 F.2d 399 (3d Cir. 1980). In Teen- Ed, the district court rejected a lay witness's testimony because the appellant failed to identify him before trial as an expert witness. See id. at 404. This court noted that the district court "failed to distinguish between opinion testimony which may be introduced by lay witnesses and that which requires experts." Id. at 403. In reversing the district court's ruling, this court held as follows: "We interpret the pre-trial ruling in this case to have required identification of expert witnesses under Rules 702 and 703, but not of lay witnesses under Rule 701." Id. at 404.
The district court also erred in failing to determine whether Wilburn and Stanley, as percipient witnesses to the events that occurred before Wilburn was tossed from the deck of the Enterprise by a gigantic wave, possessed the requisite knowledge or experience to provide testimony.
The district court's error in excluding the opinions of lay witnesses prevented Wilburn from presenting evidence in support of his theories that the negligence of an employee of Maritrans and the unseaworthiness of the Enterprise were the direct cause of his injuries. A defendant is not entitled to a judgment as a matter of law on the basis that the evidence is insufficient if the trial court has erroneously excluded relevant and admissible evidence. See Scott v. Plante, 641 F.2d 117, 136 (3d Cir. 1981), vacated on other grounds, 458 U.S. 1101 (1982). Accordingly, we must reverse the judgment as a matter of law, entered pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, regarding Maritrans's liability for negligence and unseaworthiness.
B. Motion for a New Trial
Our reversal of the order granting judgment as a matter of law requires us to consider the district court's conditional grant of a new trial pursuant to Rule 50(c)(1). Wilburn contends that the district court erred in concluding as a matter of law that the evidence regarding liability was insufficient because of his failure to present a maritime expert to prove negligence and unseaworthiness. Wilburn disputes the district court's finding that "the facts and circumstances presented in this case were beyond the realm of knowledge and experience of the jurors." This court exercises plenary review when the ...