                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                    No. 13-3922
                                  _______________

                              ARLINGTON G. GHEE;
                             LAYVONE GHEE, his wife

                                          v.

                   MARTEN TRANSPORT, LTD; RANDY J. BEE,
                       JOHN DOE 1-10, ABC, INC., 1-10

                        Marten Transport, LTD; Randy J. Bee,
                                                   Appellants
                                 ______________

                    On Appeal from the United States District Court
                            for the District of New Jersey
                           (D.C. Civil No. 3-11-cv-03718)
                        District Judge: Hon. Freda L. Wolfson
                                   _______________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 10, 2014

            BEFORE: FISHER, COWEN AND TASHIMA*, Circuit Judges

                                 (Filed: June 25, 2014)
                                  _______________

                                     OPINION
                                  _______________
_______________
*Hon. A. Wallace Tashima, Senior United States Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
COWEN, Circuit Judge.

       The defendant-appellants, Marten Transport, Ltd. (“MTL”) and Randy J. Bee,

challenge certain adverse evidentiary rulings and, relatedly, the denial of their motion

seeking either a new trial or remittitur. We will affirm.1

                                              I.

       Because this opinion lacks precedential value, and because we write principally for

the parties, we will only set forth the facts that are necessary to inform our analysis.

       The principal plaintiff-appellee, Arlington Ghee, filed suit in the United States

District Court for the District of New Jersey.2 He alleged in the Complaint that both

MTL and Bee were liable for damages resulting from a May 2009 accident involving two

tractor-trailers. One of those tractor-trailers was driven by Ghee, and the other, which

was owned by MTL, was driven by Bee.

       Both MTL and Bee conceded liability (and appear to have conceded causation),

thus leaving only one triable issue: the quantum of Ghee’s damages. A jury heard six

days of testimony on that issue. The evidence heard by the jury, which bears on this

appeal, can be divided into four parts.



       1
       The District Court had jurisdiction under 28 U.S.C. § 1332(a). Our jurisdiction is
premised on 28 U.S.C. § 1291.
       2
         Ghee’s wife raised a derivative claim for loss of consortium. But it appears that
       2
         Ghee’s wife raised a derivative claim for loss of consortium. But it appears that
she abandoned that claim, which neither appeared in the Final Pre-Trial Order nor was
put at issue during trial. See Phoenix Canada Oil Co. Ltd. v. Texaco, Inc., 842 F.2d 1466,
1475-76 (3d Cir. 1988).
                                              2
       First, Ghee presented expert testimony from two doctors who spoke to the nature

and extent of his physical injuries. The defendants neither objected to nor offered

evidence tending to refute that testimony.

       Second, Ghee testified about the practical effect of his injuries. He testified over

the defendants’ objection that his injuries would prevent him from driving a tractor-trailer

in the future. He also testified without objection that he “didn’t know” or “have any idea

what else [he could] do” because he was not “computer literate” and was unable to work

in an establishment that would require him to stand on his feet for an extended period of

time. (J.A. 82-83.)

       Third, Ghee called an expert, economist Paul Gazaleh, who testified regarding

Ghee’s claims for past and future wage loss.3 On cross-examination, Gazaleh noted that

his calculations were premised on the assumption that the accident rendered Ghee unable

to work. He also readily admitted that he was not qualified to testify as a vocational

expert and had not, in preparing his expert report, reviewed any vocational expert’s

materials or evaluation of Ghee.

       Fourth, in response, MTL and Bee offered vocational evidence tending to show

that Ghee would be able to work in the future, in some capacity.




       3
        The defendants jointly moved in limine to bar Gazaleh’s testimony. District
Judge Freda L. Wolfson wisely reserved decision on that motion until she heard “the
testimony of the witnesses preceding Mr. Gazaleh,” including the testimony of both Ghee
and his medical experts. Ghee v. Marten Transp., Ltd., No. 11-3718, 2013 WL 4500333,
at *1 (D.N.J. Aug. 21, 2013). She then denied the motion.
                                              3
       Following the presentation of evidence, the jury awarded Ghee $875,896.21 in

damages, including $108,496 for past lost wages and $210,000 for future lost wages. The

defendants timely filed a post-trial motion, seeking either a new trial or remittitur. That

motion was denied, and this appeal followed.

                                              II.

       Our review of a district court’s evidentiary rulings is highly deferential. We will

review the District Court’s application of the Federal Rules of Evidence only for abuse of

discretion, Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 80 (3d Cir. 2009),

including its admission of expert testimony, Pineda v. Ford Motor Co., 520 F.3d 237, 243

(3d Cir. 2008), and lay opinion testimony, United States v. Stadtmauer, 620 F.3d 238, 260

(3d Cir. 2010). “‘An abuse of discretion arises when the District Court’s decision rests

upon a clearly erroneous finding of fact, an errant conclusion of law[,] or an improper

application of law to fact.’” Pineda, 520 F.3d at 243 (quoting In re TMI Litig., 193 F.3d

613, 666 (3d Cir. 1999)).

       MTL and Bee first argue that the District Court erred when it allowed Ghee to

testify that his injuries would prevent him from operating a tractor-trailer in the future.

We disagree. It is well-settled that “‘[t]he modern trend favors the admission of [lay]

opinion testimony, provided that it is well founded on personal knowledge and

susceptible to specific cross-examination.’” Lightning Lube, Inc. v. Witco Corp., 4 F.3d

1153, 1175 (3d Cir. 1993) (alterations in original) (quoting Teen-Ed, Inc. v. Kimball Int’l,

Inc., 620 F.2d 399, 403 (3d Cir. 1980). Where, as here, a lay witness’s opinion testimony


                                              4
“is based on sufficient experience or specialized knowledge” and “a sufficient

connection” exists between “such knowledge and experience and the lay opinion,” that

opinion should be admitted because it “may be fairly considered to be ‘rationally based on

the perception of the witness’ and truly ‘helpful’ to the jury.” Asplundh Mfg. Div. v.

Benton HarborEng’g, 57 F.3d 1190, 1193 (3d Cir. 1995).

       MTL and Bee also argue on appeal that the District Court erred when it allowed

Ghee to testify about the effect of his injuries on his ability to take other jobs or complete

other types of work. However, MTL and Bee waived that argument by failing to either

raise an objection at trial or assert the argument upon their post-trial motion. As the

District Court correctly noted, see Ghee, 2013 WL 4500333, at *3 n.6, “a party who fails

to object to errors at trial waives the right to complain about them following trial.”

Waldorf v. Shuta, 142 F.3d 601, 629 (3d Cir. 1998); see also Birdman v. Office of the

Governor, 677 F.3d 167, 173 (3d Cir. 2012) (“It is axiomatic that arguments asserted for

the first time on appeal are deemed to be waived and consequently are not susceptible to

review in this Court absent exceptional circumstances.” (citation and internal quotation

marks omitted)).

       Finally, MTL and Bee argue that the assumption underlying Gazaleh’s expert

testimony, i.e., that Ghee’s injuries prevented him from working in any capacity, was not

supported by a proper evidentiary basis. Again, we disagree. The testimony that came

into evidence, either over objection or in the absence of an objection, showed that Ghee

could neither work: (1) as a truck driver, or (2) in any other capacity.


                                              5
                                             III.

       Insofar as the defendants sought a new trial, we find no error in the District

Court’s denial of their post-trial motion. Granting that motion, which was premised on

the evidentiary rulings discussed above, would have run afoul of both common sense and

good logic. A motion for a new trial cannot be granted on the basis of evidentiary rulings

that were rightly decided in the first instance. Further, as noted by the District Court, the

request for a new trial could not have rested on an objection that the defendants wholly

failed to lodge. See Waldorf, 142 F.3d at 629; Murray v. Fairbanks Morse, 610 F.2d 149,

152 (3d Cir. 1979) (“Counsel’s failure to object precludes him from seeking a new trial

on [those] grounds . . . .”).

       We similarly find no error in the District Court’s denial of the defendants’ request

for remittitur. MTL and Bee failed to show that the damages awarded to Ghee were

either constitutionally excessive or against the weight of the evidence. But cf. Lesende v.

Borrero, No. 06-4967, 2011 WL 4765162, at *4-8 (D.N.J. Oct. 7, 2011).4 To the

contrary, it appears that the jury considered the sum of the evidence presented, weighed

the evidence in a manner that considered both Ghee’s testimony regarding his inability to

work and the vocational evidence submitted by the defendants, and “split the baby” by

awarding Ghee less for future lost earnings than he demanded.

                                             IV.


       4
         This Court earlier described the October 7, 2011 opinion in Lesende as “well-
rooted in both law and fact.” Lesende v. Borrero, --- F.3d ----, 2014 WL 1924726, at *13
(3d Cir. Apr. 7, 2014).
                                              6
      For the reasons expressed above, we will affirm the judgment of the District Court

entered on September 5, 2013.




                                           7
