                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-1998

Lauria v. Natl RR Passenger
Precedential or Non-Precedential:

Docket 97-1306,97-1361,97-1362,97-1363




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Recommended Citation
"Lauria v. Natl RR Passenger" (1998). 1998 Decisions. Paper 117.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/117


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Filed May 22, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 97-1306, 97-1361, 97-1362, 97-1363

FRANK LAURIA,
       Appellant in Appeal No.
       97-1306

v.

NATIONAL RAILROAD PASSENGER CORPORATION,
       Appellant in Appeal Nos.
       97-1361/62/63

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 95-1561)

Argued: March 17, 1998

Before: SLOVITER, RENDELL, and SEITZ, Circuit Judges

(Opinion Filed: May 22, 1998)

       Marvin I. Barish
       Stacey E. Barish (ARGUED)
       Marvin I. Barish Law Offices, P.C.
       The Curtis Center, Suite 801
       Sixth & Walnut Streets
       Philadelphia, PA 19106
        Attorneys for Appellant, Cross-
        Appellee
       David E. Faust
       Andrew J. Connolly (ARGUED)
       Sheila A. Haren
       Post & Schell, P.C.
       1800 JFK Blvd., 19th Floor
       Philadelphia, PA 19103
        Attorneys for Appellee,
        Cross-Appellant

OPINION OF THE COURT

RENDELL, Circuit Judge:

Appellant Frank Lauria and two railyard co-workers were
traversing the railroad tracks near Philadelphia's 30th
Street Station late one evening when Lauria slipped and
injured himself. He sued his employer, Appellee National
Railroad Passenger Corporation ("Amtrak"), under the
Federal Employers' Liability Act, 45 U.S.C. S 51, et seq.,
("FELA"), claiming a workplace injury caused by Amtrak's
failure to provide a reasonably safe work environment. At
trial, the district court refused to permit the admission of
expert and lay opinion testimony, and at the close of
Lauria's case it entered a judgment as a matter of law in
favor of Amtrak. We have jurisdiction over the district
court's ruling pursuant to 28 U.S.C. S 1291, and we will
reverse and remand for a new trial.

I.

On November 8, 1993, Lauria slipped while crossing the
tracks at Amtrak's Penn Coach Yard in Philadelphia with
two co-workers, Campbell Smith, an engineer, and Carl
Boselli, a conductor. Lauria testified that because they were
crossing a "dark" railyard with "poor" lighting conditions,
he was trying to step on the ballast, the coarse gravel that
is used to form the bed of the railroad, rather than on the
rail ties themselves, because it provides stable footing and
support between the tracks. However, Lauria lost his
balance and fell on Track 26 while trying to step over the
ties. He stated under oath that he raised his left foot, lifted

                               2
it over the rail, and set it firmly on the ballast. He then
lifted his right foot, but he slipped when trying to place that
foot down on the ballast, and he fell to the ground,
developing sharp pains in his right leg and lower back
before losing consciousness. Lauria admitted that he never
saw what caused the fall, but he testified that he had
stepped on "something slippery," rather than on the ballast
that is usually found between the two rail ties on the
tracks.

Boselli testified that he was standing an "arm's length"
from Lauria when the accident occurred. Boselli saw Lauria
fall, heard him "smack" onto the ground, and felt "baffled"
because Lauria "fell violently." Immediately after the
accident, Boselli looked down and saw a "fresh" skid mark
on the surface of a piece of wood that was lying inside the
gauge of the track where the ballast providing stable footing
would normally be found. The wood was in the exact area
where Lauria had slipped, and the skid mark was at the
precise spot where the fall had occurred. Boselli also
noticed that the lighting conditions were "poor," because
the overhead lights did not sufficiently illuminate the area
where Lauria fell, and because the trains "were blocking the
passage of what lights did exist."

Lauria attempted to offer Robert T. Slavin, a track
foreman and maintenance engineer, to support his case as
an expert witness under Federal Rule of Evidence 702.
Slavin was prepared to testify that Amtrak's negligence in
failing to remove a piece of wood from the tracks had
contributed to and caused Lauria's injuries. However, the
district court found that Slavin was not sufficiently
qualified as an expert on track maintenance operations,
and it refused to allow him to render an opinion. The court
also rejected Lauria's effort to introduce Slavin as a lay
witness pursuant to Federal Rule of Evidence 701. As a
result, Lauria sought to recall Boselli as a lay opinion
witness to testify about the condition of the tracks on the
morning after the accident. Once again, though, the district
court denied Lauria's request under Rule 701 and
precluded the witness from testifying. Amtrak then moved
for judgment as a matter of law under Federal Rule of Civil
Procedure 50(a), arguing that without the testimony of

                               3
Slavin and Boselli, Lauria had presented no evidence that
Amtrak's negligence had contributed to his injuries. The
district court agreed, and on March 27, 1997, it dismissed
Lauria's claims and entered judgment in favor of Amtrak at
the close of Lauria's case.

Lauria contends on appeal that the district court abused
its discretion in excluding the testimony of Slavin and
Boselli and erred in entering a judgment in Amtrak's favor.1
We need not reach the issue of the correctness of the
district court's ruling on the motion for judgment as a
matter of law, because we conclude that Lauria's failure to
produce evidence of negligence resulted from the improper
exclusion of testimony from Slavin and Boselli that was
clearly admissible.2 Therefore, we will reverse and remand
for a new trial at which Slavin and Boselli may testify on
Lauria's behalf.

II.

The district court incorrectly prohibited Slavin from
testifying as an expert witness. Federal Rule of Evidence
702 provides that "[i]f scientific, technical, or other
specialized knowledge 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
_________________________________________________________________

1. We review the district court's decisions to exclude expert testimony
under Rule 702, and to exclude lay opinion testimony under Rule 701,
for abuse of discretion. See In re Paoli R.R. Yard PCB Litig., 916 F.2d
829, 856 n.33 (3d Cir. 1990) (expert testimony); Government of the V.I.
v. Knight, 989 F.2d 619, 629 (3d Cir. 1993) (lay opinion testimony).

2. Although we need not decide the propriety of the court's judgment as
a matter of law based on the evidence before it, we note that it is a
close
question given the minimal proof required to withstand a directed verdict
in FELA cases combined with Lauria's evidence as to poor lighting in the
railyard. See Pehowic v. Erie Lackawanna R.R. Co., 430 F.2d 697,
699-700 (3d Cir. 1970) (footnotes omitted) (emphasis added) (holding
that a "trial court is justified in withdrawing[FELA] issues from the
jury's consideration only in those extremely rare instances where there
is a zero probability either of employer negligence or that any such
negligence contributed to the injury of an employee").

                                4
form of an opinion or otherwise." The Rule therefore has
three fundamental requirements: (1) the proffered witness
must qualify as an expert by knowledge, skill, experience,
training, or education; (2) the expert must testif y to
scientific, technical, or other specialized knowledge; and
(3) the expert's testimony must assist the trier o f fact.
United States v. Velasquez, 64 F.3d 844, 849 (3d Cir. 1995).
Here, the district court appears to have excluded Slavin's
testimony based on the first two elements of the test,
evincing skepticism as to both the extent of Slavin's
qualifications and as to whether he possessed specialized
knowledge.3

Lauria offered Slavin as an expert in track maintenance
based on his experience and education in "Maintenance of
Way" and related train procedures. Slavin's expert report
contained his opinion that, from an examination of photos
and the site, the piece of wood in question was a"base tie"
over which a walkway platform once existed; that it should
have been discovered by Amtrak during a regular
inspection and removed; and that it "contributed to and
caused" Lauria's injuries.4
_________________________________________________________________

3. The district court's colloquy with Slavin, set forth below, could be
interpreted as questioning either the first element of the Rule -- whether
Slavin qualified as an expert by virtue of his special knowledge -- or
both of the Rule's first two prongs -- his experience and the nature and
extent of his knowledge regarding track maintenance. We will construe
it based on the latter, believing that to be the approach most consistent
with the nature of the court's inquiry.

4. At oral argument Amtrak argued that the district court properly
excluded Slavin's testimony, because Slavin could not testify as to
causation since he was not an expert in accident reconstruction.
However, this argument misconstrues the district court's ruling, which
never reached this issue, but focused instead on the extent of his
"specialized knowledge" as it relates to qualifying him to be an expert
witness. No mention was made of the last sentence of Slavin's report
regarding his stated view that Amtrak's failure"to provide a reasonably
safe place in which to perform his duties contributed to and caused
Lauria's injury." We thus focus only on Slavin's qualifications and
specialized knowledge in the area of industry standards for track
maintenance. It will be for the district court to examine whether Slavin
is qualified to speak to the issue of causation if Amtrak makes this
objection at a new trial.

                               5
Lauria proffered evidence as to the extent of Slavin's
experience in railroad track operations. Slavin had worked
for Consolidated Rail Corporation ("Conrail") from 1976 to
1993, where he was hired as a trackman and then
promoted to machine operator, assistant supervisor, and, in
1981, to supervisor of railroad tracks. As a supervisor,
Slavin assumed ultimate responsibility for conditions on a
200-300 mile stretch of track located in Indiana. Among
other things, he oversaw maintenance of the track
structure, installation of the rail ties, and rehabilitation of
all switches, and he was responsible for records,
chargeouts, and safe maintenance of the area. Slavin also
successfully completed training programs for track
foremen, maintenance and way engineers, equipment
operators, and supervisors during his seventeen-year
tenure at Conrail. In addition, he had been self-employed
as a railroad track safety consultant since 1993.

In pretrial proceedings, the district court had denied
Amtrak's motion in limine to exclude Slavin's testimony.
See Lauria v. National R.R. Passenger Corp., No. Civ. A.
95-1561, 1997 WL 138906, at *6-7 (E.D. Pa. March 24,
1997). However, after listening to the voir dire, and asking
its own questions, the district court rejected Lauria's
_________________________________________________________________

We note, however, that counsel for Lauria stated at oral argument that
Slavin's work in accident reconstruction over the last five years did
provide a basis for his expert status on causation, and that a number of
federal courts have permitted experts qualified because of their
specialized knowledge to testify as to the cause of railroad accidents.
See,
e.g., Lowery v. Illinois Cent. Gulf R.R. Co. , 891 F.2d 1187, 1194 & n.3
(5th Cir. 1990) (witness with ten years experience as train master,
operating rules examiner, manager of railroad car repair, and inspector
of railroad equipment was qualified as an expert on whether hand brake
operations could cause personal injuries); Fritts v. Toledo Terminal R.R.
Co., 293 F.2d 361, 364 (6th Cir. 1961) (engineer with forty years of
railroad experience could testify that worn frogs, or railroad track
devices, caused a train to lurch, because "[q]ualified persons as
experienced railroad employees may testify and express opinions on
matters of this type"); Atchison, Topeka & Santa Fe Ry. Co. v. Simmons,
153 F.2d 206, 208-09 (10th Cir. 1946) (locomotive engineers with
experience operating trains qualified as experts to testify as to whether
the presence of caliche rock caused a train derailment).

                               6
request to introduce Slavin at trial as a qualified expert on
track maintenance.5 The court's examination of Slavin
proceeded in relevant part as follows:

The Court: Now the first question, do you consider yourself
       qualified by reason of your scientific
       education? Do you feel yourself qualified to
       testify as an expert based on your technical
       knowledge by reason of education or
       experience and if so would you be specific as to
       what you think that is? Technical knowledge.

Slavin: I believe so with the hands-on experience that I've
       had over the years working with track and track
       equipment and maintenance and production, yes,
       I --

The Court: You consider that to be your specialized
       knowledge?

Slavin: Yes.

The Court: And what separates you from other persons
       who have worked for twenty years on the
       railroad? Would all of those . . . ladies or
       gentlemen who have had the same experience
       -- work experience as you, in your mind, sir,
       do you consider them to be persons who have
       the type of technical or specialized knowledge
       who can come into a court of law and give
       answers to hypothetical questions like a doctor
       does?

Slavin: I believe so.

The Court: And why is that? What is so unusual about
       working the rails as you have over the years
       which gives persons who had that experience
       specialized knowledge of the type that would
       enable them to offer an opinion, to
       hypothecate?
_________________________________________________________________

5. Under Fed. R. Evid. 104(a), the trial judge decides the preliminary
questions of whether the proposed expert is qualified and whether the
testimony is admissible.

                               7
Slavin: I don't have an answer for that.

The Court: And that's my dilemma. . . . I'm not qualifying
       him as an expert. . . . I don't see any basis to
       qualify him as an expert.

We must exercise restraint in examining the district
court's decision on appeal, because a "trial court's
determination whether to admit or exclude expert testimony
will be upheld unless manifestly erroneous." Waldorf v.
Shuta, ___ F.3d ___, Nos. 97 5195, 97-5222, 1998 WL
173103, at *27 (3d Cir. Apr. 15, 1998) (quotation omitted).
Nevertheless, we find that in light of Slavin's qualifications
and the liberal standard for determining whether a witness
qualifies as an expert for purposes of Rule 702, the district
court did err in precluding Slavin from testifying. 6

We have consistently maintained that Rule 702 is to be
interpreted liberally. See, e.g., Velasquez, 64 F.3d at 849; In
re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 855 (3d Cir.
1990) ("Paoli I"). "[A] broad range of knowledge, skills, and
training qualify an expert as such," and we have thus
"eschewed imposing overly rigorous requirements of
expertise and have been satisfied with more generalized
qualifications." In re Paoli R.R. Yard PCB Litig., 35 F.3d 717,
741 (3d Cir. 1994) ("Paoli II").

In fact, "it is an abuse of discretion to exclude testimony
simply because the trial court does not deem the proposed
expert to be the best qualified or because the proposed
expert does not have the specialization that the court
considers most appropriate." Holbrook v. Lykes Bros. S.S.
Co., 80 F.3d 777, 782 (3d Cir. 1996); see also Paoli I, 916
F.2d at 855 (writing that any "insistence on a certain kind
of degree or background is inconsistent with our
jurisprudence"). We have held that witnesses such as
Slavin can qualify as experts under Rule 702 on the basis
of practical experience alone, and a formal degree, title, or
educational speciality is not required. American Tech.
_________________________________________________________________

6. Because we hold that Slavin should have been permitted to testify as
an expert witness, we do not reach Lauria's contention that Slavin
should have been permitted to testify alternatively as a lay witness
pursuant to Fed. R. Evid. 701.

                                8
Resources v. United States, 893 F.2d 651, 656 (3d Cir.
1990). For example, in Hammond v. Int'l Harvester Co., we
held that a witness who sold agricultural equipment and
taught automobile repair and maintenance at a high
school, but who lacked any formal training or education,
could testify as an expert in a products liability action
involving tractors, based on his "knowledge and experience"
alone. 691 F.2d 646, 653 (3d Cir. 1982). Similarly, we held
recently that a witness could qualify as a vocational expert,
despite a lack of formal training, because he had experience
in vocational rehabilitation and familiarity with the relevant
literature in his field. Waldorf, #6D6D 6D# F.3d ___, 1998 WL
173103, at *27; see also United States v. Riccobene, 709
F.2d 214, 230-31 (3d Cir. 1983) (concluding that an FBI
agent qualified as an expert to define certain terms on
undercover audiotapes because of his twelve years of
practical experience in organized crime investigations),
overruled on other grounds by Griffin v. United States, 502
U.S. 46 (1991); 4 Jack B. Weinstein & Margaret A. Berger,
Weinstein's Federal Evidence S 702.06[4], at 702-39 (2d ed.
1997) ("A person may qualify as an expert on the basis of
skill or practical experience rather than education or
training."). We conclude that Slavin's twenty years of
experience with track equipment, maintenance, and safety
procedures qualified him as an expert who could testify as
to Amtrak's responsibility to inspect and maintain the track
in a safe condition.

Additionally, the knowledge forming the basis of Slavin's
opinion was clearly "specialized." In evaluating this second
element of Rule 702, we measure the reliability or
trustworthiness of the expert's testimony. Velasquez, 64
F.3d at 849. However, the "specialized" knowledge upon
which Slavin's testimony is founded is not the same as
"scientific" and "technical" knowledge, as these terms are
used in the disjunctive in Rule 702. To be "specialized,"
knowledge can be based on sufficient practical or work
experience in the field about which the witness is testifying,
and it need not be based on testing or experiments beyond
common understanding. Fed. R. Evid. 702, advisory
committee's note; Habecker v. Copperloy Corp. , 893 F.2d
49, 51-52 (3d Cir. 1990). Therefore, we need only ask
whether Lauria has shown that Slavin's testimony would be

                               9
reliable or trustworthy in light of Slavin's practical
background and training.7 We conclude that given Slavin's
twenty years of experience in track maintenance,
operations, and safety, and given the nature of his opinion
and the liberal standard by which we interpret reliability
under Rule 702, Velasquez, 64 F.3d at 849-50, Lauria has
clearly met his burden to demonstrate that Slavin's
testimony would be sufficiently reliable so as to be
admissible.

We also find that the third element under Rule 702,
namely, that Slavin's testimony would assist the trier of
fact, is clearly met. As the Supreme Court has written, this
"condition goes primarily to relevance." Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 591 (1993). The proffered
expert's testimony must "fit" under the facts of the case so
that "it will aid the jury in resolving a factual dispute." Id.
(quoting United States v. Downing, 753 F.2d 1224, 1242 (3d
Cir. 1985)). Once again, however, the standard for this
factor "is not that high," Paoli II, 35 F.3d at 745, and we
find that it has been met in the case at bar. The primary
issue here is whether Amtrak was negligent in failing to
remove a base tie from Lauria's workplace. Slavin was the
only witness originally presented to testify that the tie was
a dangerous obstruction that should have been discovered
and removed, and was the only such witness who would
have asserted that Amtrak's negligence made the workplace
unsafe. There is, therefore, a clear "fit" connecting the issue
_________________________________________________________________

7. This case does not require us to test the reliability of Slavin's
opinion
with the factors outlined in Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579 (1993). Whether Daubert even applies outside the scientific context
remains in dispute. See, e.g., id. at 590 n.8 (noting that the opinion was
"limited to the scientific context because that[was] the nature of the
expertise" offered in the case); Watkins v. Telsmith, Inc., 121 F.3d 984,
991 (5th Cir. 1997) (Daubert is applicable to cases involving specialized
knowledge); United States v. Webb, 115 F.3d 711, 716 (9th Cir. 1997)
(Daubert's standards "simply do not apply" to experts with specialized
knowledge). We do not, however, need to resolve that controversy here.
Because Slavin's opinion is based on his observations and familiarity
with "Maintenance of Way Procedures" and is gleaned from years of
practical experience, the discipline in this case is so different from a
scientific inquiry that we see no need to engage in a detailed analysis
regarding the scientific reliability of the proffered opinion.

                               10
in the case with the expert's opinion, which will aid the jury
in determining whether the defendant's conduct met the
standard of care. Consequently, we conclude that Slavin
should have been permitted to testify.

Finally, we note that because Slavin was the only witness
originally offered to prove Amtrak's negligence with respect
to the base tie, his exclusion from the trial did not
constitute harmless error. The exclusion of expert evidence
will be upheld as harmless error only where it is"highly
probable" that the error did not affect the judgment in the
district court. Holbrook, 80 F.3d at 787. After reviewing
Slavin's proffered testimony, as well as the basis for the
district court's ruling, we cannot say that it is"highly
probable" that the error in this case did not contribute to
the entry of a judgment in Amtrak's favor.

III.

We also conclude that the district court abused its
discretion in rejecting Lauria's request to recall Boselli as a
witness to render a lay opinion under Rule 701. Once the
district court rebuffed Lauria's attempt to introduce Slavin
as an expert witness, Lauria sought to have Boselli testify
about the condition of the tracks as he perceived them on
the morning after the accident. The record indicates that
Boselli would have opined that Lauria slipped on an extra
piece of wood that was located between the tracks in an
area where train employees would ordinarily expect to find
ballast. However, after discussing the matter with the
parties, the district court concluded that Boselli could "add
nothing more as a lay witness," and it denied Lauria's
request to recall him to the stand because, in its view,
Boselli had "no information to give to the jury which would
in any way, shape, or form aid them in their determination
regarding the location of the fall and what caused the fall."

We disagree. Federal Rule of Evidence 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 witn ess

                               11
       and (b) helpful to a clear understanding of the wi tness'
       testimony or the determination of a fact in issue.

The district court did not view Boselli's proffered testimony
as helpful to the determination of Amtrak's negligence, and
it thus prohibited Boselli from testifying based on the
language in Rule 701(b). Yet we believe that the standard
for admissibility under that provision is liberal enough to
allow Lauria to recall Boselli in support of his case-in-chief.

We have noted concerning the admissibility of lay opinion
testimony that the "modern trend favors the admission of
opinion testimony, provided that it is well founded on
personal knowledge and susceptible to specific cross-
examination." Teen-Ed, Inc. v. Kimball Int'l, Inc., 620 F.2d
399, 403 (3d Cir. 1980). Therefore, an opinion is"helpful"
to the trier of fact within the meaning of Rule 701(b) if it
aids or clarifies an issue that the jury would not otherwise
be as competent to understand. See United States v. Skeet,
665 F.2d 983, 985 (9th Cir. 1982) ("Opinions of non-experts
may be admitted where the facts could not otherwise be
adequately presented or described to the jury in such a way
as to enable the jury to form an opinion or reach an
intelligent conclusion.") As long as the "circumstances can
be presented with greater clarity by stating an opinion, then
that opinion is helpful to the trier of fact." Government of
the V.I. v. Knight, 989 F.2d 619, 629 (3d Cir. 1993).

Boselli's opinion that Lauria slipped on an extra piece of
wood on the tracks easily satisfies these permissive
standards. His testimony would have shown the existence
of an unforseen obstruction in the exact location where
Lauria fell, which, in turn, could have assisted the jury in
determining whether the wood posed an unreasonable
danger to railroad employees crossing the tracks.
Regardless of what other evidence had been presented at
trial, Boselli's statements would have informed the jury as
to issues of track maintenance and safety encountered in
the ordinary course, and would have identified a potential
hazard that was central to Lauria's theory of negligence.
Moreover, nothing in the record suggests that Boselli lacked
the experience or specialized knowledge needed to render
an opinion on this issue. In this regard, the instant case
differs materially from Asplundh Mfg. Div. v. Benton Harbor

                               12
Eng'g, 57 F.3d 1190, 1201 (3d Cir. 1995), where we held
that lay opinions on technical matters such as causation
"must derive from a sufficiently qualified source as to be
reliable and hence helpful to the jury."

Accordingly, we conclude that the district court erred by
prohibiting Lauria from recalling Boselli to the stand,
because Boselli's lay opinion testimony certainly would
have been "helpful" to the "determination of a fact in issue"
within the meaning of Rule 701. Also, given the substance
of Boselli's proffered testimony in the context of Lauria's
case, we cannot conclude that the court's error in excluding
Boselli's testimony was harmless. See Holbrook , 80 F.3d at
787.

IV.

Amtrak has filed a cross-appeal challenging several of the
district court's rulings, but we reject these contentions
because we agree substantially with the reasoning of the
district court. We will thus affirm the February 19, 1997,
denial of Amtrak's renewed motion for summary judgment,
the March 24, 1997, denial of Amtrak's motion in limine to
exclude the testimony of John Mariani, D.O., I. David
Weisband, D.O., and Robert T. Slavin, and the March 24,
1997, grant of Lauria's motion in limine to exclude Slavin's
personnel and medical records.

V.

The district court abused its discretion by excluding the
testimony of Robert T. Slavin as an expert witness, and by
prohibiting Lauria from recalling Carl Boselli to the stand
as a lay opinion witness. Accordingly, the district court's
Order dated March 27, 1997, will be reversed, and the
cause will be remanded for a new trial consistent with this
opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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