                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                      No. 19-1317
                                     _____________

                              RONNIE KIRKPATRICK;
                             MICHELLE VENSEL, his wife

                                             v.

                          GEICO CASUALTY COMPANY,
                                          Appellant
                    _______________________________________

                     On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                                    (No. 2-17-cv-00236)
                     Chief District Judge: Honorable Mark R. Hornak
                     _______________________________________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   March 11, 2020

                Before: McKEE, AMBRO, and PHIPPS, Circuit Judges.

                              (Opinion filed: April 22, 2020)

                                      ____________

                                        OPINION *
                                      ____________




*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PHIPPS, Circuit Judge.

       Ronnie Kirkpatrick, a citizen of Pennsylvania, was injured in a motor vehicle

crash in Butler County, Pennsylvania on July 6, 2012. The injury was solely the fault of

the other driver, and the other driver’s insurance policy paid Kirkpatrick $100,000. Due

to the extent of his injuries and their effect on his ability to work, Kirkpatrick, along with

his wife, Michelle Vensel, also a citizen of Pennsylvania, requested additional

compensation under their automobile insurance policy with Geico Casualty Company.

That policy included underinsured motorist coverage for up to $900,000, and they sought

compensation for Kirkpatrick’s lost earning capacity in their business restoring vintage

cars, as well as pain and suffering, embarrassment and humiliation, loss of enjoyment of

life, and Vensel’s loss of consortium. Unable to agree with Geico on the amount of

additional recovery, Kirkpatrick and Vensel sued Geico for breach of contract and bad-

faith, seeking damages over $75,000.

       After the parties stipulated to dismiss the bad-faith claim, the breach of contract

claim went to trial. The jury awarded Kirkpatrick and Vensel an aggregate total of $3.22

million in damages. The verdict apportioned $2.97 million of that award to Kirkpatrick

and the remaining $250,000 to Vensel for loss of consortium. The total award exceeded

the policy limit, and the parties stipulated to reduce the judgment to $900,000, split

between Kirkpatrick ($830,160) and Vensel ($69,840).

       On appeal, Geico challenges two rulings related to the trial. First, it argues that

the District Court erred by excluding evidence that Kirkpatrick smoked a pack of

cigarettes per week. Second, Geico contends that Kirkpatrick could not recover for a loss

                                              2
of earnings capacity because, in the years before the accident, the couple’s car restoration

business did not generate earnings. Geico preserved those issues in opposing a pre-trial

motion in limine, by an oral motion for a directed verdict, and through a motion for a new

trial under Rule 59(e). As a timely appeal of a jury verdict and an order denying a

Rule 59(e) motion, Geico’s appeal is within the Court’s appellate jurisdiction. See

28 U.S.C. § 1291; Fed. R. App. P. 4(a)(1)(A), 4(a)(4)(A)(v). And with our rectification

of a pleading defect, see 28 U.S.C. § 1653, the District Court also had jurisdiction over

this case under the diversity statute, see 28 U.S.C. § 1332(a)(1). 1 For the reasons set

forth below, we will affirm the judgment of the District Court.

              Geico’s Challenges Do Not Merit Reversal or a New Trial.

       A.     The District Court Did Not Abuse Its Discretion in
              Excluding Evidence that Kirkpatrick Smoked a Pack of
              Cigarettes Per Week.

       As part of its defense, Geico sought to introduce evidence that Kirkpatrick smoked

about a pack of cigarettes per week. According to Geico, that evidence would show that

Kirkpatrick’s life expectancy would be shorter than the actuarial prediction presented to


1
  The complaint did not state Geico’s state of incorporation, which is necessary to invoke
diversity jurisdiction when one of the parties is a corporation. See 28 U.S.C.
§ 1332(a)(1), (c)(1). However, other federal courts recognize Geico Casualty Company
as a Maryland corporation. See, e.g., Castillo v. Geico Cas. Co., -- F. Supp. 3d --, 2020
WL 1308328, at *1 (D. Nev. Mar. 19, 2020); Gov’t Emps. Ins. Co. v. Pennsauken Spine
& Rehab P.C., 2018 WL 3727369, at *1 (D.N.J. Aug. 6, 2018). Indeed, Maryland’s
‘egov’ website indicates that Geico was incorporated in Maryland in 1982. See
https://egov.maryland.gov/BusinessExpress/EntitySearch/BusinessInformation/D014587
44. Under these circumstances, diversity jurisdiction over Geico is proper. See Kiser v.
Gen. Elec. Corp., 831 F.2d 423, 427 (3d Cir. 1987) (explaining that § 1653 “applies in
particular to amendments that affect a court’s diversity jurisdiction, and it permits
amendments broadly so as to avoid dismissal of diversity suits on technical grounds”).
                                              3
the jury because that prediction of 34.3 remaining years did not account for Kirkpatrick’s

smoking history. See Rosche v. McCoy, 156 A.2d 307, 313 (Pa. 1959) (explaining that in

assessing a person’s life expectancy, a jury may consider the person’s personal habits).

       The District Court excluded that evidence under Rule 403. 2 It explained that

evidence of smoking a pack a week, on its own, had minimal probative value. The

District Court pointed out that Geico did not present evidence on how long Kirkpatrick

had been smoking and that Geico did not offer an expert to opine on the effect of

smoking a pack a week on Kirkpatrick’s life expectancy. Without those, the District

Court concluded that the probative value of the proposed evidence was substantially

outweighed by the risk of unfair prejudice and confusion.

       In reviewing that determination for an abuse of discretion, 3 the District Court did

not err. Evidence of a smoking habit may be probative of predictive life expectancy, but

the evidence Geico sought to introduce was critically incomplete. It did not suggest how

long Kirkpatrick smoked a pack per week – he could have done so for a year, or a decade,

or more. Leaving that degree of guesswork to a jury is a recipe for confusion and unfair

prejudice. Nor could that shortcoming be cured through expert testimony. With only


2
  Fed. R. Evid. 403 (permitting the exclusion of “relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence”).
3
  See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (“[C]ourts of
appeals uphold Rule 403 rulings unless the district court has abused its discretion.”);
Honeywell, Inc. v. Am. Standards Testing Bureau, 851 F.2d 652, 655 (3d Cir. 1988)
(reviewing a denial of Rule 59(e) motion for a new trial under the abuse-of-discretion
standard).

                                             4
rate-of-smoking evidence and nothing on the duration of the smoking habit, it is

improbable that any expert witness could reliably challenge the actuarial prediction. If an

expert could not reasonably rely on the proffered evidence, the District Court certainly

did not abuse its discretion by excluding that evidence from the jury.

       B.     The District Court Did Not Err in Denying Geico’s
              Request for a Directed Verdict.
       Geico next contends that Kirkpatrick cannot recover for lost earnings capacity

because, in the years before the accident, Kirkpatrick and Vensel’s car restoration

business operated at a loss. Under Pennsylvania law, which no one disputes applies to

this diversity case, loss of earning capacity measures not the loss of actual earnings, but

rather the loss of the ability to earn. See Holton v. Gibson, 166 A.2d 4, 7-8 (Pa. 1960);

Saganowich v. Hachikian, 35 A.2d 343, 345 (Pa. 1944). Thus, to prevail, Geico must

demonstrate that the record was “critically deficient of the minimum quantum of

evidence” of a loss of earnings capacity, such that the jury would have insufficient

evidence to reasonably find liability. Eshelman v. Agere Sys., Inc., 554 F.3d 426, 433

(3d Cir. 2009) (quoting Gomez v. Allegheny Health Servs., Inc., 71 F.3d 1079, 1083 (3d

Cir. 1995)); see also Frank C. Pollara Grp., LLC v. Ocean View Inv. Holding, LLC,

784 F.3d 177, 184 n.9 (3d Cir. 2015).

       Geico falls well short of that standard. Several pieces of evidence support the

jury’s award for loss of earnings capacity. Both Kirkpatrick and Vensel testified that

their business model involved purchasing vintage automobiles and then restoring them.

The restoration process required both time and money: it could take up to ten years and


                                              5
would cost between $100,000 and $250,000. At the time of the accident, Kirkpatrick and

Vensel had not fully restored any cars. But an appraiser testified by deposition that four

of the cars that Kirkpatrick eventually restored had collective values of between

$5,225,000 and $6,350,000. This evidence, coupled with evidence of Kirkpatrick’s

inability to restore cars at the same rate, supports the jury’s award – even in the absence

of pre-injury earnings.

                                              ***

         In short, the District Court did not abuse its discretion in the challenged rulings.

Geico’s arguments do not provide reasonable grounds to second-guess the jury verdict,

which was already reduced from $3.22 million to the policy limit of $900,000. Thus, in

exercising jurisdiction, we will affirm the judgment and post-trial order of the District

Court.




                                                6
