                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-2072


PITT OHIO EXPRESS, LLC;     THOMAS TROXEL MILLER,

                Plaintiffs - Appellees,

          v.

PAT SALMON & SONS, INC.; JOHN JOSEPH BANIK,

                Defendants - Appellants,

          and

C. BEAN TRANSPORT, INC.;     WILLIAM MICHAEL FEWELL,

                Defendants.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.  Michael F. Urbanski,
District Judge. (5:11-cv-00059-MFU)


Submitted:   June 5, 2013                    Decided:   July 16, 2013


Before WILKINSON, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph Francis Cunningham, James Vincent Lopez, Joshua Matthew
Hoffman, CUNNINGHAM & ASSOCIATES, PC, Arlington, Virginia, for
Appellants.   David W. Hearn, Sarah Warren S. Beverly, SANDS
ANDERSON, PC, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       This appeal presents a challenge to the district court’s

refusal to overturn a jury verdict or grant a new trial in a

case resulting from an interstate highway collision. Appellants

also    claim    that    the     district      court    abused       its   discretion    by

excluding       expert    testimony      and      excluding    certain        evidence    as

unfairly prejudicial.             For the reasons that follow, we affirm

the judgment.



                                             I.

       This     case    arises    from   a     series     of   collisions         involving

three commercial trucks and a passenger vehicle along Interstate

81     in   Shenandoah      County,      Virginia.        In     response         to   foggy

conditions, William Michael Fewell slowed the first commercial

truck, which was owned by his employer C. Bean Transport Inc.

(“C. Bean”).       Joseph Banik, driving the second truck, which was

owned by his employer, Pat Salmon and Sons, Inc. (“Pat Salmon”),

collided with the back of the C. Bean truck.                               That collision

caused only minor damage to both trucks, but it disabled the Pat

Salmon truck and at least partially obstructed both lanes of

traffic. Very shortly thereafter, a Hyundai sedan approached the

stationary       truck    and    applied     its    breaks.      A    third       commercial

truck owned by Pitt Ohio Express LLC. (“Pitt Ohio”) and driven

by     Thomas    Miller    collided        with     the    back       of    the    Hyundai,

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propelling the car into the back of the Pat Salmon truck. 1                     Both

occupants of the Hyundai and a passenger who had exited the Pat

Salmon truck died in the collision.

     After the accident, Banik, the driver of the second, Pat

Salmon    truck,    was    charged   with     reckless   driving     and    pleaded

guilty to a lesser offense of driving improperly on the night of

the accident.       Pitt Ohio, the owner of the third truck, agreed

to   voluntary      settlements      with     the    estates    of    the      three

decedents.         The    decedents’      estates    agreed    to    release    all

liability claims against Pat Salmon as part of the settlement.

Pitt Ohio then filed this action in the District Court for the

Western    District       of   Virginia    seeking    contribution      from     Pat

Salmon and C. Bean for their joint liability in the collisions

and resulting settlements.

     Before trial, Pat Salmon unsuccessfully moved for summary

judgment on the questions of negligence and proximate causation.

Pitt Ohio filed motions in limine to exclude expert testimony as

to the proper standard of care for operating commercial vehicles

and to exclude evidence of the presence of beer containers in


     1
       For ease of reference, we refer hereinafter to Fewell, the
driver of the first truck, and C. Bean, the owner of the first
truck, collectively as “C. Bean.”    We likewise refer generally
to Banik, the driver of the second truck, and Pat Salmon
collectively as “Pat Salmon.” And we refer to Miller, the driver
of the third truck, and Pitt Ohio collectively as “Pitt Ohio.”



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the cab of the Pitt Ohio truck. The district court granted both

motions. Pitt Ohio proceeded to trial, where the jury returned a

verdict against Pat Salmon. 2 After denying appellants’ renewed

motion for judgment as a matter of law, or in the alternative, a

new    trial,      the        district       court    entered       judgment        against

appellants for $687,500.00. This appeal follows.



                                              II.

                                               A.

       Pursuant to Federal Rule of Civil Procedure 50(b), we will

affirm the denial of a renewed motion for judgment as a matter

of    law   if,    “‘giving          [the    non-movant]     the    benefit    of    every

legitimate inference in his favor, there was evidence upon which

a jury could reasonably return a verdict for him....’” Cline v.

Wal-Mart     Stores,          Inc.,    144    F.3d    294,    301   (4th     Cir.    1998)

(quoting Abasiekong v. City of Shelby, 744 F.2d 1055, 1059 (4th

Cir. 1984)). Meanwhile, the decision to grant a new trial under

Federal     Rule       of    Civil    Procedure      59(a)    “is   within    the    sound

discretion        of        the   district      court,       and    we   respect      that

determination absent an abuse of discretion.” Id.




       2
       The jury found no negligence on the part of C. Bean. It is
not a party to this appeal.



                                               5
       Given      these      standards,          the        jury      verdict       should      be

sustained.           The    jury       could    have       determined,       evaluating        the

evidence in the light most favorable to Pitt Ohio, that Banik,

the    driver        of    the     second,      Pat    Salmon         truck,      was     driving

negligently when he drove his vehicle into the back of the C.

Bean truck.          In cases involving the negligence of a following

vehicle,     it      “is    for       the   jury”     to    determine       “what       due   care

required, and whether it was exercised.” S. Fruit Distributors

v. Fulmer, 107 F.2d 456, 458 (4th Cir. 1939).                                   The jury was

entitled to reject Banik’s testimony that he did nothing wrong

on the day of the accident, especially in light of his guilty

plea to improper driving. Such determinations are for the trier

of fact, and on appellate review, “[w]e do not weigh evidence

nor judge the credibility of witnesses.” First Union Commercial

Corp. v. GATX Capital Corp., 411 F.3d 551, 556 (4th Cir. 2005).

       Similarly, there was sufficient evidence for the jury to

find    that      Banik’s         negligence        proximately         caused      the       three

deaths. Under Virginia law, “[t]he proximate cause of an event

is    that     act    or    omission         which,        in   natural      and    continuous

sequence, unbroken by an efficient intervening cause, produces

the    event,        and    without         which     that      event       would    not      have

occurred.”        Doherty        v.    Aleck,    641       S.E.2d     93,    97     (Va.      2007)

(internal      quotation          marks     omitted).           Pat   Salmon       argues     that

there were in fact two separate accidents separated by five to

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ten seconds, and that because Banik was involved only in the

first, he did not cause the second, fatal accident.                          That theory

was presented to the jury at trial, but as the district court

noted, the jury “didn’t buy it.” Instead, it evidently viewed

the collision between the Pat Salmon and C. Bean trucks as part

of   one    larger      accident.      The        jury     determined      that    Banik’s

negligent operation of his truck was the first step in a chain

reaction that led to the three deaths, and it is within the

province of the trier of fact to make such a finding.

                                             B.

     Next, appellants argue that the district court should not

have excluded testimony by their accident reconstruction expert

on the standard of care for operating a commercial truck in

difficult       conditions.       We     review          the   exclusion     of     expert

testimony for abuse of discretion. See United States v. Barile,

286 F.3d 749, 753 (4th Cir. 2002).

     As    an    initial     matter,     Pat       Salmon      did   not   preserve    its

appeal     of    the    district       court’s       exclusion        of   the    expert’s

testimony.        Pat    Salmon    did    not       disclose     in    the   record    the

substance of what the witness intended to say. See Fed. R. Evid.

103(a)(2)       (“if   the   ruling     excludes          evidence,    a   party    [must]

inform[] the court of its substance by an offer of proof” in

order to claim error); United States ex rel. Ubl v. IIF Data

Solutions, 650 F.3d 445, 455 n.2 (4th Cir. 2011). Absent that

                                             7
disclosure,       this    court    cannot       properly   determine   whether     the

expert’s testimony might have been admissible. In addition, the

district     court       originally       excluded      the   expert’s     testimony

because a complete statement of his opinions was not properly

disclosed in his written report, as required under Federal Rule

of Civil Procedure 26(a)(2)(B). Appellants do not challenge this

ruling on appeal, and there is no basis for this court to review

it.

       The district judge’s decision to exclude the testimony was

also sound on the merits. Expert testimony has its place, but

courts    are     permitted       to    exclude     expert    testimony    when    “it

concerns matters within the everyday knowledge and experience of

a lay juror.” Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993).

The    district     court    was       well    within   its   discretion    when    it

determined that the jury was best positioned to “decide from the

evidence whether someone was driving too slow or too fast or was

otherwise negligent under the conditions encountered on April

20, 2009.”

                                              C.

       Finally, appellants argue that the district court abused

its discretion by excluding under Federal Rule of Evidence 403

testimony that there were beer containers in the cab of the Pitt

Ohio     truck.      “A     district          court's   evidentiary    rulings     are

entitled to substantial deference, because a district court is

                                               8
much closer than a court of appeals to the pulse of the trial.”

United States v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992)

(internal quotation marks ommitted).

      Under Virginia law, evidence such as a person’s “manner,

disposition,   speech,     muscular     movement,       general      appearance       or

behavior”   must    be   presented     in   order   to    admit      the    issue     of

intoxication properly.          Hemming v. Hutchinson, 277 S.E.2d 230,

232 (Va. 1981).          Because such evidence was not presented by

appellants, the district court was entitled to exclude testimony

regarding the beer containers as unfairly prejudicial.                      Weighing

the   probative     against     the   prejudicial       under   Rule       403   is    a

classic call for a district judge, and the court below did not

abuse its discretion in excluding the evidence of the beer cans

as unduly prejudicial.



                                      III.

      The   trier   of   fact    cannot     be   said    to   have    unreasonably

decided the issues of negligence and causation.                       The district

court’s evidentiary rulings were within its sound discretion.

For the foregoing reasons, the judgment is affirmed.

                                                                            AFFIRMED




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