Fattman v. Bear

¶1OPINION OF THE COURT

¶2This is an appeal from the denial of a post-trial motion for a new trial on damages, or in the alternative, motion for a new trial on liability and damages, challenging the exclusion of Patricia Fattman’s direct testimony on post-accident employment accommodations. We will affirm.

¶3I.

¶4Plaintiffs Patricia Fattman and her husband Lewis Fattman brought suit to recover damages sustained in a motor vehicle accident with a vehicle driven by Defendant John Bear. A jury returned a verdict for Plaintiffs and awarded $25,000 to Patricia Fattman but none for Lewis Fattman. Plaintiffs filed a motion for new trial on the following grounds: inadequacy of the damage award, verdict against the weight of the evidence, compromise verdict, and refusal by the trial court to permit testimony by Patricia Fattman regarding accommodations enabling her to continue her employment. The District Court denied the motion and Plaintiffs appealed, challenging only the “excluded” testimony.

¶5The appeal involves Plaintiffs’ counsel’s direct examination of Patricia Fattman.1*958Counsel attempted to elicit testimony on accommodations provided to Mrs. Fattman by her employer, but the District Court sustained objections as leading and/or assuming facts not in evidence. Without eliciting the sought for testimony, counsel moved on to a different topic.

¶6II.

¶7We review a trial court’s grant or denial of a new trial for abuse of discretion. Pryer v. C.O. 3 Slavic, 251 F.3d 448, 453 (3d Cir.2001). We review evidentiary rulings for abuse of discretion, Moyer v. United Dominion Industries, Inc., 473 F. 3d 532, 542 (3d Cir.2007), but even an erroneous ruling necessitates a new trial only if the ruling affects “a substantial right of the party.” Fed.R.Evid. 103(a). Harmless error occurs when “it is highly probable that the error did not affect the result.” Hill v. Reederei F. Laeisz G.M.B.H., Rostock, 435 F.3d 404, 420 (3d Cir.2006).

¶8Here the District Court ruled the questions asked on direct examination were leading and assumed facts not in evidence. “Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony.” Fed.R.Evid. 611(c). As the Advisory Committee Notes state, “[a]n almost total unwillingness to reverse for infractions [regarding leading questions] has been manifested by appellate courts” because “[t]he matter clearly falls within the area of control by the judge over the mode and order of interrogation and presentation....” Fed.R.Evid. 611 advisory committee notes; see also 1 McCormick on Evidence § 6 (6th ed.2006) (“The allow-ability of leading questions is discretionary, and the judge’s action will not be reversed unless it contributed to an unfair trial.”) (footnotes omitted).

¶9A leading question “suggests the answer to the person being interrogated.” Black’s Law Dictionary 906 (8th ed.2004). Plaintiffs’ counsel asked, “Mrs. Fattman, what accommodations, if any, were made to your job, because of your condition?” But prior to this line of questioning, there was no evidence of accommodations on the record. Therefore, the trial judge could, in his discretion, find such questions suggested the answer Mr. McDonald sought, that Patricia Fattman’s employer provided accommodations.

¶10The trial judge did not foreclose questioning on the matter. Plaintiffs’ counsel continued to ask a similar form of question after the first objection was sustained. The trial judge told counsel, “I know what to ask her,” and “You might ask her what she did.” These statements welcomed further attempts to ask non-leading questions, but counsel chose to move on to a different topic. Patricia Fattman did testify about the medication she took following the accident, the effect it had on her ability to concentrate and the amount of work she missed following the accident.

¶11*959The trial judge did not commit error in sustaining objections to Plaintiffs’ counsel’s questions. Because the trial judge committed no error, we need not address whether an erroneous trial court ruling has affected Plaintiffs’ substantial rights.

¶12III.

¶13For the foregoing reasons, we will affirm the judgment of the District Court.