                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                       No. 18-2570
                                    ________________

    SENECA INSURANCE COMPANY, a/s/o WILD BLUE MANAGEMENT LP,
                                                 Appellant

                                             v.

            MARK BEAL, d/b/a MARK’S MAINTENANCE AND REPAIR

                                             v.

                  LARRY D. JEFFRIES, d/b/a L&D CONTRACTING;
                    GENE NEWHAMS, d/b/a GN ELECTRICAL;
                    CHRIS SOKOL; WILD BLUE MANAGEMENT LP

                                    ________________

                       Appeal from the United States District Court
                         for the Western District of Pennsylvania
                                 (D.C. No. 2:13-cv-01737)
                       District Judge: Honorable Robert C. Mitchell
                                     ______________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                  December 9, 2019

                 Before: RESTREPO, ROTH, FISHER, Circuit Judges

                              (Opinion filed: July 17, 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.
RESTREPO, Circuit Judge

       Appellant Seneca Insurance Co. (“Seneca”), as Subrogee of Wild Blue

Management LLP, challenges the District Court’s denial of Seneca’s motion in limine,

which requested the disqualification of defendant’s expert Ralph Dolence and the denial

of its post-trial motion for a new trial. For the reasons that follow we affirm.

                                             I.

       This appeal arises out of a claim of negligence against Mark Beal and Mark’s

Maintenance and Repair (collectively, “Beal”) after a fire on December 17, 2012 that

caused substantial and costly damage to the Natrona Heights Shopping Plaza owned by

Wild Blue Management, Inc. in Natrona Heights, Pennsylvania. As its insurer, Seneca

paid Wild Blue Management’s losses resulting from the fire. The dispute at trial was

over the origin and cause of the fire, whether Beal acted negligently while removing a

neon sign, and whether those actions or omissions were a factual cause of the fire. At

trial, plaintiff employed three experts: Dennis Brew, who specialized in installing and

removing neon signs; Gerald Kufta, a private investigator specializing in fires; and

Samuel Sero, a forensic engineer. At issue in this appeal is the testimony of defendant's

only expert witness, Ralph Dolence (“Dolence”), a career fire fighter, fire officer,

licensed master electrician, and forensic expert.

       On March 28, 2018, the jury reached a verdict that Beal was negligent when he

removed a neon sign from the façade of a vacant storefront in the plaza, but that Beal's

actions or omissions were not the factual cause of the fire. Because the jury found that

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Beal’s actions or omissions were not the factual cause of the fire, it did not determine

what percentage of negligence should be attributed to Beal. On April 25, 2018, Seneca

filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new

trial. The District Court denied Seneca’s motion on June 14, 2018. Seneca timely

appealed.

       The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction

under 28 U.S.C. § 1291.

                                               II.

                                    A.    Motion in Limine

       Appellant claims the District Court abused its discretion when it denied Seneca's

motion in limine, asserting that Dolence’s expert witness testimony was speculative and

lacked foundation. We review the District Court's decision for abuse of discretion, and

will not disturb its decision unless “no reasonable person would adopt the district court’s

view.” Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002). To

constitute an abuse of discretion, the District Court’s decision must have been “arbitrary,

fanciful, or clearly unreasonable.” Id.

       Under Fed. R. Evid. 702, the trial judge serves as a gatekeeper to determine

whether the witness’ methodology is relevant and reliable. Kannankeril v. Terminix Int’l,

Inc., 128 F.3d 802, 806 (3d Cir. 1997). “[I]f the methodology and reasoning are

sufficiently reliable to allow the fact finder to consider the expert's opinion, it is that trier



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of fact that must assess the expert's conclusions.” In re TMI Litig., 193 F.3d 613, 665 (3d

Cir. 1999).

       Whether or not expert testimony is admissible “focuses on principles and

methodology and not the conclusions they generate.” Kannankeril, 128 F.3d at 807.

Dolence was qualified as an expert witness under Rule 702 because of his knowledge

from years of professional experience, which included over 30 years as a fire investigator

and 40 years as a licensed electrician. At the time of his testimony, Dolence, a qualified

forensic expert in 30 states, had served on arson task forces, investigated over 12,000

fires, and taught hundreds of classes on fire causes and origin investigations.

       Dolence’s testimony was based on, among other things, his personal observations

and review of materials from the fire investigation. The foundation of his opinion was an

examination of several hundred photographs, videos, and other documentation provided

by the township, fire marshal, and individuals who were at the scene of the fire. He also

analyzed depositions, documents, and reports provided by appellant’s experts and

attended a joint evidence examination with Gerald Kufta and several other experts.

Dolence based his opinion on standards and guidelines of the National Fire Protection

Association (“NFPA”). Using his expert knowledge, Dolence examined the evidence and

facts provided to him and compared it to the industry standard, and ultimately testified

that the cause of the fire was “undetermined” because the fire investigation was improper

and other causes were not ruled out.




                                             4
       Upon review of Dolence’s report and testimony, there is no “definite and firm

conviction that the [District Court] committed a clear error of judgment in the conclusion

it reached upon a weighing of the relevant factors.” Oddi v. Ford Motor Co., 234 F.3d

136, 146 (3d Cir. 2000). For these reasons, the District Court did not abuse its discretion

in denying Seneca’s motion in limine.

                                B.   Motion for a new trial

       Seneca also appeals the District Court’s denial of its post-trial motion for a new

trial. Seneca asserts that it is entitled to a new trial because Dolence's testimony was

improper, as it caused jury confusion regarding the legal standard for proving factual

causation of the fire. We review the District Court’s decision for abuse of discretion.

Leonard v. Stemtech Int'l Inc., 834 F.3d 376, 386 (3d Cir. 2016).

       Seneca argues that Dolence’s testimony implied that the standard of proof was to

rule out every other cause of the fire and that he testified to hypothetical causes of the

fire. As the District Court properly noted in its Memorandum and Order, Dolence’s

testimony about the flaws in the fire investigation was permissible. Dolence specifically

testified about the flaws in the methodology and parts of the investigation that were, in

his opinion, improper based upon NFPA 1033, which outlines the proper ways

investigators must collect and preserve evidence.

       The record reflects that Dolence did not impose a burden of proof or outline a

legal standard as Seneca alleges. Rather, he described the methods of fire investigation

under NFPA and the methods he knew should be employed based on his experience of


                                              5
examining over 12,000 fires over the course of his 30-year career as a fire investigator.

Although Dolence’s testimony may have contradicted the opinions of Seneca’s experts,

as the District Court properly noted, Seneca had the opportunity to attack the credibility

of Dolence’s testimony through cross examination and did so at trial.

        As part of its argument, Seneca points to an “inconsistent” verdict, because the

jury found Beal to be negligent but that his negligence was not a factual cause of the fire.1

The two questions answered by the jury were: (1) “Was the defendant, Mark Beal doing

business as Mark’s Maintenance and Repair, negligent?”; and (2) “If you answered

Question No. 1 ‘Yes,’ was the negligence of Mark Beal doing business as Mark’s

Maintenance and Repair a factual cause of any harm to the plaintiff?” App. at 0002 –

0003.

        These are two separate questions, designed to determine whether or not Beal was

liable. For Beal to be found liable for the damage of the fire, the jury needed to answer

“Yes” to Question 2. Two distinct answers to these separate questions does not

demonstrate that Dolence mislead the jury through his testimony. Rather, this simply

indicates that the jury, weighing the evidence presented by both parties, deliberated and

concluded that Beal’s actions or omissions were not the factual cause of the fire.




1
 Seneca does not dispute that it waived any challenge to the verdict on appeal, but rather
argues that what it claims to be an “inconsistent” verdict is evidence that Seneca was
prejudiced by Dolence’s testimony.



                                             6
      For the reasons set forth above, we affirm the District Court’s decision to deny

Seneca’s motion for Judgment Notwithstanding the Verdict or in the Alternative for a

New Trial.




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