THERESA C. FOSTER v. NATIONAL FUEL GAS COMPANY, a corporation v. Smith Industries, Inc.

PRECEDENTIAL
Filed January 21, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1494
THERESA C. FOSTER
v.
NATIONAL FUEL GAS COMPANY, a corporation;
SMITH INDUSTRIES INC., a corporation;
COLUMBIA GAS TRANSMISSION CORPORATION, a
corporation; AMERICAN METER COMPANY, a corporation;
DRESSER INDUSTRIES INC., a corporation; ECLIPSE
INC.; EQUIMETER, INC., a corporation
NATIONAL FUEL GAS COMPANY,
Third Party Plaintiff
v.
SMITH INDUSTRIES, INC.; FREDERICK LOGAN
COMPANY, INC.; AMERICAN METER COMPANY;
EQUIMETER, INC.,
Third Party Defendants
EQUIMETER, INC.,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 96-cv-00014E)
District Judge: Honorable Sean J. McLaughlin
Submitted Under Third Circuit LAR 34.1(a)
November 20, 2002
Before: BARRY and AMBRO, Circuit Judges
ACKERMAN,* District Judge
(Opinion filed January 21, 2003)
OPINION OF THE COURT
AMBRO, Circuit Judge:
In this contributory liability lawsuit, third-party
defendant Equimeter Inc. seeks to appeal each of the
District Court’s denials of its three motions for judgment as
a matter of law, each raising the same issue, made after

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third-party plaintiff National Fuel Gas, Inc.’s case-in-chief,
and immediately before and after the case went to the jury.
We do not, however, review whether the District Court
should have granted the first or second motions, but
instead consider only whether the Court correctly denied
the third. Doing so, we agree with the District Court’s
determination that by the end of the trial sufficient
evidence supported the jury’s verdict. Rejecting several
additional arguments made by Equimeter, we affirm.
BACKGROUND
Theresa C. Foster brought this lawsuit against National
Fuel seeking personal injury and property damages
allegedly sustained as the result of a natural gas explosion
at her home. Excessive pressure on a gas line at a
regulation station owned by National Fuel caused the
explosion.
National Fuel filed a third-party complaint against
Equimeter, Inc., which supplied a safety relief valve for
National Fuel’s regulation station, for contribution in the
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* Honorable Harold A. Ackerman, United States District Judge for the
District of New Jersey, sitting by designation.
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event National Fuel was liable to Foster. Equimeter, in turn,
filed a cross-claim for contribution against American Meter
Company, which had provided three pressure regulators for
the regulation station.1
Before trial, National Fuel and Foster settled her claim for
approximately $1,070,000. National Fuel and Equimeter
did not, however, reach a settlement as to National Fuel’s
contribution claim. Nor did Equimeter and American Meter
settle the contribution claim between them. Accordingly,
the contribution claims among National Fuel, Equimeter,
and American Meter went to trial.
National Fuel brought its claim against Equimeter
pursuant to the Uniform Contribution Among Tortfeasors
Act, 42 Pa. Cons. Stat. SS 8321-27, which provides for
contribution to a joint tortfeasor (in this case, National
Fuel) that settled with the injured party and extinguished
the liability of another joint tortfeasor (here, Equimeter).
See Slaughter v. Pennsylvania X-Ray Corp., 638 F.2d 639,
642 (3d Cir. 1981) (citing S 8324(c)). Under the Act, "if the
payor [National Fuel] is not a tortfeasor,[its] payment
would be that of a volunteer and would not support a claim
for contribution." Id.; see alsoSS 8322, 8324(c). Thus, in
order to recover from Equimeter, National Fuel had to prove
that it acted negligently to Foster’s detriment.
After National Fuel presented its case-in-chief, Equimeter
moved for judgment as a matter of law on the ground that
National Fuel had not presented sufficient evidence from

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which the jury could reasonably infer that National Fuel
was in any way liable for the explosion. The District Court
denied the motion because the jury could reasonably draw
this inference. The Court also told counsel that it intended
to instruct the jury to find that National Fuel acted as a
joint tortfeasor.
In its case-in-chief, Equimeter argued that National Fuel,
not Equimeter, was responsible for the explosion.
Equimeter put on evidence that National Fuel had, among
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1. National Fuel had previously filed for contribution from American
Meter, but the two companies settled that claim and it is not at issue in
this appeal.
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other things, made design errors in the placement of
Foster’s house meter, which allowed the gas to enter the
house from underneath it, and had failed to use telemetry
to monitor the gas. Also, a National Fuel employee, in that
company’s rebuttal to Equimeter’s evidence at trial, testified
that National Fuel had some liability for the accident.
Before the case went to the jury, Equimeter again moved
on the same ground for judgment as a matter of law, which
the District Court denied. As it had said it would do, the
District Court instructed the jury to find that National Fuel
had some liability. The jury found Equimeter eighty percent
at fault for the explosion, National Fuel twenty percent at
fault, and American Meter not at fault. Equimeter renewed
its motion for judgment as a matter of law, again on the
same ground, and alternatively moved for a new trial,
arguing that the District Court erred in instructing the jury
as to National Fuel’s liability. Equimeter also moved for a
new trial against American Meter, arguing that the jury’s
determination that American Meter was not at fault went
against the weight of the evidence. The District Court
denied Equimeter’s motions, and Equimeter timely
appealed.
DISCUSSION
A. National Fuel’s third-party contribution claim
against Equimeter
1. Denial of Equimeter’s motions for judgment as a
matter of law
Equimeter first argues that the District Court erred in
denying each of its motions -- made after National Fuel’s
case-in-chief and renewed immediately before and after the
case went to the jury -- for judgment as a matter of law.
We review de novo a denial of a motion for judgment as a
matter of law. Walter v. Holiday Inns, Inc., 985 F.2d 1232,
1238 (3d Cir. 1993).
The District Court may grant judgment as a matter of law

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only if "there is no legally sufficient evidentiary basis for a
reasonable jury" to find in favor of National Fuel. Fed. R.
Civ. Proc. 50(a)(1). "The question is not whether there is
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literally no evidence supporting the party against whom the
motion is directed but whether there is evidence upon
which the jury could properly find a verdict for that party."
Walter, 985 F.2d at 1238 (quoting Patzig v. O’Neil, 577 F.2d
841, 846 (3d Cir. 1978)).
Equimeter contends that there was not sufficient
evidence to permit the jury reasonably to find that National
Fuel had any liability for the explosion. We easily conclude
that the District Court correctly denied Equimeter’s motion
at the end of the trial, because Equimeter itself presented
evidence during its case-in-chief that would support a
finding of liability on National Fuel’s part -- indeed, this
was the heart of its defense -- and because a National Fuel
employee testified on rebuttal that the company
acknowledged that it had some liability. Equimeter suggests
that we must ignore the evidence that it presented and that
National Fuel presented in rebuttal and instead may
consider only the evidence that National Fuel presented it
in its case-in-chief. To the contrary, once the trial moved
forward, any subsequent evidence that strengthened
National Fuel’s case (regardless which party introduced it)
not only can, but must, be considered in the determination
whether sufficient evidence supports National Fuel’s claim.
Equimeter had a stronger argument when it first moved
for judgment as a matter of law that a jury could not
reasonably find that National Fuel had any liability for the
accident. We shall not now, however, review whether the
District Court erred in denying Equimeter’s motion at the
conclusion of National Fuel’s case-in-chief. This is because
where, as here, the party who moved for judgment as a
matter of law renews the motion later in the trial, any
"initial error by [the] district court‘is cured if subsequent
testimony on behalf of the moving party repairs the defects
of his opponent’s case.’ " Trs. of the Univ. of Pennsylvania v.
Lexington Ins. Co., 815 F.2d 890, 903 (3d Cir. 1987)
(quoting 9 J. Wright & A. Miller, Federal Practice and
Procedure S 2534 (1971)).
As noted above, Equimeter did present such testimony.
And there is no reason that subsequent evidence submitted
by the non-moving party in rebuttal should fail to have the
same curative effect as evidence presented by the moving
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party. Consequently, National Fuel’s acknowledgment in
rebuttal of some liability also acted to cure any initial defect
in its case. Simply put, because the District Court correctly
denied Equimeter’s final motion for judgment as a matter of
law, we shall not review the propriety of its earlier decisions

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regarding the same.2
We therefore affirm the District Court’s decision to deny
Equimeter’s motion for judgment as a matter of law against
National Fuel’s contribution claim.
2. Denial of Equimeter’s motion for a new trial
Equimeter next appeals the District Court’s denial of its
motion for a new trial, asserting that the District Court
committed an error of law when it instructed the jury to
find that National Fuel was to some extent liable for the
explosion, because a reasonable jury could have found
otherwise. Legal error in a charge to the jury may constitute
grounds for granting a new trial. See Lewis v. Rego Co., 757
F.2d 66, 69 (3d Cir. 1985). We generally review the decision
whether to grant a new trial for an abuse of discretion, but
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2. In addition, if no evidence of National Fuel’s liability had been
presented during its case-in-chief, the District Court arguably would
have erred by granting Equimeter’s motion for judgment as a matter of
law at that time without first allowing National Fuel another opportunity
to present such evidence:
[Rule 50 (a)(1)] authorizes the court to consider a motion for
judgment as a matter of law as soon as a party has completed a
presentation on a fact essential to that party’s case. Such early
action is appropriate when economy and expedition will be served.
In no event, however, should the court enter judgment against a party
who has not been apprised of the materiality of the dispositive fact
and been afforded an opportunity to present any available evidence
bearing on that fact.
Rule 50 advisory committee’s note (emphasis added); see also Orlando v.
Billcon Int’l, Inc., 822 F.2d 1294, 1298 (3d Cir. 1987) ("The requirement
that the specific issue be raised first in the motion for a directed verdict,
before the issue is submitted to the jury, affords the non-moving party
an opportunity to reopen its case and present additional evidence."). The
record suggests that National Fuel was not aware of this element of its
prima facie case until Equimeter moved for judgment as a matter of law.
At this point National Fuel could have presented the necessary evidence.
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we give plenary review to pure questions of law. Klein v.
Hollings, 992 F.2d 1285, 1290 (3d Cir. 1993).
National Fuel points out that it conceded during its
rebuttal case that it did have some liability for the
explosion, and argues that it follows that there was no
issue for the jury to decide. National Fuel’s "concession" or
"admission" of a point on which it bore the burden of proof
at trial and that was in its interest to establish cannot by
itself mean that the jury would have acted unreasonably if
it had found that National Fuel had not proven that point.
Thus, the fact that National Fuel made this concession does
not necessarily justify the District Court’s jury instruction.
The rebuttal testimony was, however, preceded by"all

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kinds of evidence" of National Fuel’s liability submitted by
Equimeter. App. at 598 (statement of District Court). And
although Equimeter has argued that certain evidence that
National Fuel asserts bolsters its claim of liability does not
in fact prove such liability, Equimeter has not pointed to
any evidence that contradicts National Fuel’s concession.
Because National Fuel admitted its liability (and put on
rebuttal evidence to that effect), Equimeter presented "all
kinds of evidence" of the same, and Equimeter has not
identified any evidence that would allow a jury reasonably
to disregard this evidence, the District Court did not err in
instructing the jury to find that National Fuel had some
degree of liability. This instruction did not therefore warrant
a new trial.
Equimeter also points to the District Court’s statement
made at the end of National Fuel’s case-in-chief that it
would instruct the jury to find that National Fuel had some
liability for the accident. According to Equimeter, if the
District Court had not so informed the parties, Equimeter
"could" have followed a different trial strategy. Appellant’s
Br. at 28-29. But Equimeter did not object at the time the
District Court announced its plan to instruct the jury this
way. Cf. Waldorf v. Shuta, 142 F.3d 601, 629 (3d Cir. 1998)
(holding that trial court did not abuse its discretion to grant
a new trial when party had not objected to error during trial).3
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3. It does not matter that Equimeter later objected to the District Court
giving the instruction because what Equimeter complains of here is not
the instruction itself, but the effect on its case strategy of the District
Court’s announcement after National Fuel’s case-in-chief that it would
give the instruction.
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Nor has Equimeter asserted to us that it would have made
any strategic decisions differently, only that it could have
done so. See generally Fed. R. Civ. Proc. 61 ("The court at
every stage of the proceeding must disregard any error or
defect in the proceeding which does not affect the
substantial rights of the parties."). Under these
circumstances, we eschew in our review of the District
Court’s decision not to order a new trial the fact that the
District Court made this allegedly improper statement
before Equimeter presented its case.
Accordingly, we affirm the District Court’s denial of
Equimeter’s motion for a new trial as to National Fuel’s
claim against it for contribution.
B. Equimeter’s contribution cross-claim against
American Meter
Finally, Equimeter argues that the jury’s decision that
American Meter was not a joint tortfeasor goes against the
weight of the evidence and therefore that the District Court
should have granted Equimeter’s motion for a new trial on
its contribution cross-claim. A District Court may grant a

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new trial on the ground that the weight of the evidence was
against the verdict. Klein, 992 F.2d at 1290. New trials on
this ground are, however, "proper only when the record
shows that the jury’s verdict resulted in a miscarriage of
justice or where the verdict, on the record, cries out to be
overturned or shocks our conscience." Id. Consequently,
our review of the District Court’s decision is for an abuse of
discretion. Id. at 1289.
Equimeter points out that the record contains
uncontradicted evidence that the instructions
accompanying the three regulators provided by American
Meter contained inaccurate information. On this basis,
Equimeter argues that the weight of the evidence does not
support the jury’s special interrogatory finding that the
regulators themselves were not defective. The District Court
noted, however, that "there did not appear to be evidence
produced that any of the regulators themselves actually
failed." And Equimeter has not directed our attention to any
such evidence.
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Equimeter further complains that, because of the jury’s
decision that the regulators were defective, it did not
consider the next question -- whether any defects in the
regulators were a cause of the explosion. Equimeter had
argued throughout the case that its safety valve was not
defective but instead suffered from misuse due to the
inaccuracy of American Meter’s instructions. As the District
Court explained, the jury necessarily determined that the
inaccurate instructions did not cause the explosion when it
concluded in another special interrogatory that Equimeter’s
safety relief valve was defective rather than misused.
In light of the above, we conclude that the District Court
acted within its discretion in denying Equimeter’s motion
for a new trial against American Meter.
CONCLUSION
The District Court did not err in denying Equimeter’s
motion for judgment as a matter of law, as the record
contained sufficient evidence to permit the jury reasonably
to find that National Fuel was a joint tortfeasor. Nor did the
District Court err in instructing the jury to find that
National Fuel did have some liability for the accident, and
so the District Court did not abuse its discretion in denying
Equimeter’s motion for a new trial on National Fuel’s
contribution claim. Finally, the District Court suitably
exercised its discretion in denying a new trial on
Equimeter’s cross-claim against American Meter. We
therefore affirm in all respects.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit

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