                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 16-4063
                                      _____________

                      RICHARD C. ANGINO; ALICE K. ANGINO,

                                                       Appellants

                                              v.

                      THE CINCINNATI INSURANCE COMPANY
                                _______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. No. 1-15-cv-00952)
                       Magistrate Judge: Hon. Martin C. Carlson
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 12, 2017

     Before: JORDAN, KRAUSE, Circuit Judges and STEARNS*, District Judge.

                                   (Filed: June 13, 2017)
                                     _______________

                                        OPINION
                                     _______________



       *
       Honorable Richard G. Stearns, United States District Court Judge for the District
of Massachusetts, sitting by designation.

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

       Richard and Alice Angino appeal the denial of their motion for a new trial under

Federal Rule of Civil Procedure 59. They argue that the District Court gave an erroneous

jury instruction on factual causation.1 We will affirm.

I.     Background

       In November of 2014, Richard and Alice Angino were involved in an automobile

accident with an under-insured motorist who, it is undisputed, was at fault. Mr. Angino

alleges that, as a result of the accident, he “sustained severe neck, mid and low back

injuries,” (App. at 5) and that “he suffered on-going permanent disabling injuries ...

which would impair his earning capacity for the rest of his life.” (App. at 6.)

       The Anginos settled with the tortfeasor’s liability insurance provider for the policy

limit of $30,000. They then brought suit against their own insurance provider, The

Cincinnati Insurance Company,2 seeking as much as $1,000,000 in damages for

otherwise uncompensated injuries. Mr. Angino, an attorney, represented himself and his

wife in the case.

       Cincinnati conceded the negligence of the under-insured motorist but disputed

whether the accident was the cause of Mr. Angino’s allegedly disabling injuries.

Dr. Amir Fayyazi, Cincinnati’s medical expert, examined Mr. Angino and concluded

       1
         By consent of the parties, Magistrate Judge Carlson was designated by the
District Court for the Middle District of Pennsylvania to conduct these proceedings and
enter final judgment pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure
73.
       2
        The Anginos’ insurance policy with Cincinnati provides coverage in the event of
an accident involving an uninsured or under-insured motorist.
                                             2
that, while Mr. Angino had suffered some temporary back strain because of the

November 2014 accident, the claim that Mr. Angino’s permanent injuries were caused by

the accident was not well-founded. At trial, Dr. Fayyazi told the jury that Mr. Angino

had “fully recovered from the injury that was associated with the accident,” (App. at

1027), and that the permanent injuries were the result of the natural aging process and a

degenerative condition.

       The Anginos took inconsistent positions on the jury instructions they wanted. At

first, prior to trial, they recognized that proper jury instructions would charge the jury

with determining “factual cause as to some injuries.” (App. at 11.) Near the end of the

trial, however, they changed course and argued that Cincinnati’s concession of causation

as to the temporary back strain precluded the jury from considering causation as to any of

Mr. Angino’s injury claims. In other words, the Anginos took the position that because

of the one concession, the Court should effectively direct a verdict on all issues of

causation.

       The Court rejected that argument because it was unsupported by Pennsylvania

law. It instead proposed a revised jury instruction and verdict form that would have told

the jury that factual causation for the temporary back strain was undisputed but causation

for the permanent injuries was in dispute. The proposed instruction would have allowed

the jury to determine damages for the temporary back strain but would have submitted to

the jury the question of causation for the permanent injuries.

       The Anginos objected to the revision. They continued to argue that, if the District

Court did not direct a verdict on causation for all injuries, it should simply provide a

                                              3
general factual causation instruction to the jury. Based on that argument, the Court gave

the jury a general factual causation instruction.3 The jury returned a verdict for

Cincinnati, concluding that the Anginos had not proven that “the negligence of the

[under-insured motorist] was a factual cause of the harms complained of by the

[Anginos].” (App. at 1233.)

       The Anginos moved for a new trial under Federal Rule of Civil Procedure 59,

arguing that, because the jury did not find causation although causation was conceded,

the verdict was against the weight of the evidence. According to the Anginos, the

District Court had to grant a new trial on damages for all of Mr. Angino’s injuries, even

those for which he had failed to establish causation. The argument was, in essence,

another demand for a directed verdict on causation. The District Court denied the motion

for a new trial, with the exception that, if the Anginos elected within 30 days “to proceed

with a damages trial limited to the one narrow claim where factual causation was

conceded, namely, the claim that [Mr. Angino] experienced temporary back strains




       3
         The Court gave the following instruction:
             The parties … dispute … whether the tortfeasor’s negligent conduct
      was a factual cause in bringing about the various harms complained of by
      the plaintiffs.
             In order for the plaintiffs to recover in this case, the tortfeasor’s
      negligent conduct must have been a factual cause in bringing about harm.
      Conduct is a factual cause of harm when the harm would not have occurred
      absent the conduct. To be a factual cause, the conduct must have been an
      actual, real factor in causing the harm, even if the result is unusual or
      unexpected. A factual cause cannot be an imaginary or fanciful factor
      having no connection or only an insignificant connection with the harm.
(App. at 378-79.)
                                             4
caused by the accident, the [C]ourt [would] permit a new trial [for damages] on that claim

alone.” (App. at 15.)

       The Anginos elected not to proceed with a new trial limited in that way and

instead immediately filed this appeal.

II.    Discussion4

       The Anginos argue on appeal that the District Court erred when it gave the issue

of factual causation to the jury for determination. “In reviewing a district court’s denial

of a motion for a new trial ... we ask generally whether the district court abused its

discretion, but if the court’s denial of the motion is based on application of a legal

precept, our review is plenary ... .” Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089,

1095 (3d Cir. 1995). Here, the denial of the motion for a new trial was based on an

interpretation of Pennsylvania law, and we therefore exercise plenary review.

       We agree with the District Court that Pennsylvania law does not support the

Anginos’ argument that, when a defendant concedes causation of some minor injuries,

the jury is precluded from determining causation of any other injuries. It is true that

Pennsylvania law provides that, “[w]here there is no dispute that the defendant is

negligent and both parties’ medical experts agree the accident caused some injury to the

       4
         The District Court had jurisdiction under 28 U.S.C. § 1332. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291. No one contests our jurisdiction. To the
extent that any question may exist as to jurisdiction because the Anginos filed the appeal
before the 30-day window for a motion for a new trial had elapsed, the District Court’s
disposition ripened into an order of dismissal when the 30 days expired. Cf. Batoff v.
State Farm Ins. Co., 977 F.2d 848, 851 n.5 (3d Cir. 1992) (recognizing that where a party
declines to amend its complaint within a 30-day window provided by the court as an
alternative to dismissal, the order ripens into a final judgment appropriate for an appeal,
as provided in Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir. 1983)).
                                              5
plaintiff, the jury may not find the defendant’s negligence was not a substantial factor in

bringing about at least some of plaintiff’s injuries.” Elliot v. Ionta, 869 A.2d 502, 509

(Pa. Super. 2005) (quoting Andrews v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002))

(emphasis in original); see also Smith v. Putter, 832 A.2d 1094, 1099 (Pa. Super. 2003)

(holding that the jury’s failure to find any causation where some causation was

uncontested entitled plaintiff to new trial). And, here, the jury may have been prepared to

render a verdict granting damages for the uncontested injuries that had already been the

subject of the policy-limits settlement with the tortfeasor’s insurance carrier. But that

was not what the jury was asked to do. It could have been, but the Anginos refused.

They opted instead for a general causation instruction. The jury’s attention was primarily

directed to Mr. Angino’s uncompensated injuries, having heard evidence that Cincinnati

had already paid Mr. Angino’s medical bills for the temporary injuries.

       In a situation where partial causation is conceded but not found by a jury,

Pennsylvania precedent instructs that “the proper course is to conduct a new trial limited

to only those injuries that were uncontroverted by the defense’s medical experts.”

Bostanic v. Barker-Barto, 936 A.2d 1084, 1089 (Pa. Super. 2007); see also Campagna v.

Rogan, 829 A.2d 322, 329-30 (Pa. Super. 2003) (holding that where concession is made

to some injury but the “extent and duration of the injury” is contested, the proper course

is to grant a new trial “limited to damages resulting from the uncontroverted injury”);

Hyang v. Lynde, 820 A.2d 753, 757 (Pa. Super. 2003) (same). That is precisely what the

District Court permitted in the order now on appeal. The Anginos were offered the

opportunity for a new trial limited to damages for the uncontested injuries. They were

                                              6
not entitled to anything more. They were certainly not entitled to a new trial for damages

for all of Mr. Angino’s alleged injuries, as they insisted. By immediately appealing, the

Anginos forfeited their opportunity to obtain the limited relief offered by the District

Court. We decline to give them yet another bite at the apple.5

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s denial of the

Anginos’ motion for a new trial.




       5
         The Anginos also argue on appeal that the District Court improperly dealt with
evidence related to the calculation of damages for Mr. Angino’s permanent disability.
Since the jury did not find causation for the permanent disability claim, and we will
affirm the judgment, we do not reach the issue of the loss-of-earnings calculation.

                                              7
