Robert Joseph McManus v. Walgreens Company; Bilco Industries

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 22-2791 & 22-2792
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ROBERT JOSEPH MCMANUS,
Appellant
v.
WALGREENS COMPANY; BILCO INDUSTRIES
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 2-21-cv-02285)
District Judge: Honorable Chad F. Kenney
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 17, 2023
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Before: CHAGARES, Chief Judge, PHIPPS, and CHUNG, Circuit Judges.
(Filed: November 6, 2023)
___________
OPINION*
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PHIPPS, Circuit Judge.
In this personal injury case, an HVAC technician sued a building owner and the
manufacturer of a roof hatch after he fell from the top of a twenty-foot fixed ladder while
trying to open the hatch to access the roof. At trial, one of the key issues was whether the
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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roof hatch could be opened safely with only one hand. On the seventh and final day of
trial, the expert witness retained by the building owner testified that he had climbed the
fixed ladder and opened the roof hatch using only one hand. But he had not disclosed
that fact earlier – it was not in his expert report or his deposition testimony – because he
had done so after the trial had started. In response to objections from the HVAC
technician, the District Court struck those portions of the expert’s testimony and
instructed the jury on two occasions that it should not be considered.
After the jury returned a verdict for the building owner and the manufacturer of
the roof hatch, the HVAC technician moved for a new trial. He argued that the litigation
by surprise and the false statements associated with the new testimony justified a new
trial. Alternatively, he contended that a new trial was appropriate because the District
Court erred by not striking the entirety of the expert’s testimony. The District Court
denied that motion, and the HVAC technician timely appealed that final decision. See
Fed. R. App. P. 4(a)(1)(A), 4(a)(4)(A)(v). In exercising appellate jurisdiction over this
case, see 28 U.S.C. § 1291, and reviewing the District Court’s order for an abuse of
discretion, we will affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On November 11, 2020, Robert McManus, a citizen of Pennsylvania, went to
Glendora, New Jersey to service the HVAC unit on the roof of a drugstore owned by
Walgreens, an Illinois corporation with its principal place of business in Illinois. The
roof was accessible by a twenty-foot fixed ladder, which led to a padlocked roof hatch.
Bilco, a Connecticut corporation with its principal place of business in Connecticut,
manufactured the roof hatch. While on the ladder, as he was attempting to unlock the
padlock to the roof hatch, McManus fell and sustained injuries in excess of $75,000.

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McManus sued Walgreens and Bilco for negligence, strict product liability, and
breach of warranty in the Court of Common Pleas of Philadelphia County. Due to the
diversity of citizenship and the amount in controversy, the case met the criteria for
diversity jurisdiction, see 28 U.S.C. § 1332(a)(1), and Walgreens removed it to the
Eastern District of Pennsylvania, see id. § 1441.
The case went to trial, and each side presented evidence about the requirements for
safely opening the padlock on the roof hatch. McManus and two expert witnesses he
retained testified that the padlock required two hands to open safely. Bilco presented two
witnesses – one expert and one lay – who testified to the opposite conclusion: that the
lock could be opened safely using only one hand. Walgreens also retained an expert
witness, Jody DeMarco, a forensic engineer, who testified to that conclusion.
Before trial, DeMarco visited the store on three occasions, and he prepared an
expert report of his opinions. On direct examination, DeMarco testified regarding several
of the opinions in his expert report. He also testified about facts that were not previously
disclosed: that he had climbed the fixed ladder and opened the padlock at issue while
using only one hand. Photographs of DeMarco opening the lock with one hand
accompanied that part of his testimony and were shown to the jury. On cross-
examination, DeMarco revealed that those facts were not included in his expert report
because he had done this experiment while visiting the store a fourth time – a week
before he testified and after the trial had already begun. But that new information was
not disclosed to McManus prior to DeMarco’s testimony. On cross-examination,
McManus’s counsel asked when DeMarco told defense counsel of his fourth visit, and
DeMarco replied, “I think I told them today. I think they found out just now.” Trial Tr.
at 44:5–6 (May 9, 2022) (A639:5–6).

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Upon hearing this, the District Court excused the jury and conducted its own
inquiry of DeMarco. In responding to the Court’s questions about whether he performed
his most recent site visit on his own and without instruction from counsel, DeMarco said
that he did so on his own. The District Court then questioned defense counsel who had
used photographs taken from DeMarco’s visit while directly examining him. In response,
counsel for Bilco, Jacqueline Promislo, a Member of Cozen O’Connor, stated, “I believe
that we received the photographs of the lock opened at the same time as Plaintiff’s
counsel . . . .” Id. at 49:11–13 (A644:11–13). The District Court then ordered defense
counsel to produce communications regarding the photographs.
Before the conference with counsel concluded, McManus moved to strike all of
DeMarco’s testimony and to stop him from testifying further. The District Court denied
the motion.
However, upon the jury’s return, the District Court instructed them to disregard
DeMarco’s testimony about opening the lock:
So I’m going to strike a portion of the witness’s testimony. Okay? So all
we know up through after the third report, that this witness has been out
there three times. Nobody knows that he took it upon himself on May 2nd
to go out there. So he comes into this courtroom, we don’t know that. And
so there is no chance to prepare for what was said and no chance to prepare
for the whole purpose of going out there and doing further things. So the
whole portion of the testimony where this witness demonstrates what he did
to climb up that ladder and do it with one hand, all of that, the photographs
themselves that he referred to, all that is stricken. So you disregard that.
I’m not saying the other testimony that was before but that portion of the
testimony and those exhibits and those photographs are stricken. Okay?
Go ahead, counsel.
Id. at 55:8–22 (A650:8–22). McManus’s counsel did not object to this instruction and
continued his cross-examination. At the end of the trial, the District Court instructed the

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jury that the testimony it had been told to disregard was not evidence and could not be
considered.
The jury returned a verdict for Walgreens and Bilco.
After that verdict, the District Court ordered counsel for Walgreens and counsel
for Bilco to submit unredacted copies of all communications relating to DeMarco’s most
recent inspection of the fixed ladder at the Walgreens. About two weeks after the trial,
the District Court received the communications regarding the inspection and the
photographs.
Those communications exposed that DeMarco’s testimony and the statements by
defense counsel during conference were less than forthright. One of the documents
revealed that the day before trial began, counsel for Walgreens, Robert L. Sanzo, a
Partner at Litchfield Cavo, emailed DeMarco to let him know he was cleared to visit the
Walgreens store on the first day of trial:
Jody – you are cleared to go to the store tomorrow afternoon. I alerted the
manager that you would be there. One more important thing: Please do not
tell anyone at the store exactly what you plan to do on the ladder and make
sure no one is watching as you climb the ladder. That shouldn’t be a
problem. Thanks.
Email from Robert Sanzo to Jody DeMarco and others (May 1, 2022, 2:21 p.m.) (A710).
And two days later, Attorney Sanzo wrote to Attorney Promislo, to pass along two
photographs of DeMarco opening the padlock with one hand. He also indicated that he
would not share those new photographs with McManus’s counsel:
Jackie – these are the two photographs taken by Jody DeMarco as he
opened the subject lock with one hand. I was about to send them to
[counsel for McManus] but he has not been sending us any photos in
advance so I won’t.
Email from Robert Sanzo to Jacqueline Promislo (May 3, 2022, 8:18 p.m.) (A718). In
the first sentence of her email reply later that same day, Attorney Promislo, who had

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previously told the District Court that she received the photos “at the same time as
Plaintiff’s counsel,” endorsed this approach with a one-word response, “Agreed.” Trial
Tr. at 49:11–13 (May 9, 2022) (A644:11–13); Email from Jacqueline Promislo to Robert
Sanzo (May 3, 2022, 8:32 p.m.) (A721).
Afterwards, McManus timely moved for a new trial. The District Court, although
expressing extreme dissatisfaction with the conduct of defense counsel, denied that
motion.
DISCUSSION
On appeal, McManus challenges the District Court’s denial of his motion for a
new trial. He identifies two grounds that would justify granting the motion: misconduct
by counsel, and the admission of the unstricken portions of DeMarco’s testimony.
A. The District Court Did Not Abuse Its Discretion by Denying
McManus’s Motion for a New Trial Based on Attorney Misconduct.
After a jury trial, a new trial may be granted “for any reason for which a new trial
has heretofore been granted in an action at law in federal court.” Fed. R. Civ.
P. 59(a)(1)(A). Those reasons include the six scenarios, identified in Rule 60(b), in
which a judgment may be vacated. Fed. R. Civ. P. 60(b)(1)–(6); see also United States v.
Beggerly, 524 U.S. 38, 46 (1998) (explaining that a new trial may be granted only where
there are “‘injustices which . . . are deemed sufficiently gross to demand a departure’
from rigid adherence to the doctrine of res judicata” (quoting Hazel-Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238, 244 (1944))). One such ground is “misconduct by
an opposing party.” Fed. R. Civ. P. 60(b)(3). To qualify under that category, a
movant must establish by clear and convincing evidence “that the adverse party engaged
in fraud or other misconduct, and that this conduct prevented the moving party from fully
and fairly presenting his case.” Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir. 1983);

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see Brown v. Pa. R.R. Co., 282 F.2d 522, 527 (3d Cir. 1960) (“[T]o sustain the burden of
proving fraud and misrepresentation under Rule 60(b)(3), the evidence must be clear and
convincing.”).
The District Court had no problem identifying misconduct. Counsel for
Walgreens and Bilco did not disclose information and photographs from DeMarco’s
inspection to McManus’s counsel, and DeMarco testified on direct examination to the
inspection using the photographs. In response, the District Court struck the offending
evidence and issued a curative jury instruction. The jury is presumed to follow the
District Court’s instruction, and nothing in the record rebuts that presumption. See
Robinson v. First State Cmty. Action Agency, 920 F.3d 182, 191 (3d Cir. 2019) (“[W]e
presume that jurors follow the instructions given to them by the trial court [unless] there
is an ‘overwhelming probability’ that the jury was unable to follow the instructions and a
likelihood that the evidence wrongfully admitted was ‘devastating’ to the other party.”
(quoting Greer v. Miller, 483 U.S. 756, 766 n.8 (1987))). Thus, despite the seeming
efforts by counsel for Walgreens and Bilco to ambush McManus at trial with DeMarco’s
testimony about his fourth site visit and the accompanying photographs, the District
Court’s curative instruction removed that information from the jury’s consideration.
Accordingly, the alleged misconduct did not prevent McManus from fully and fairly
presenting his case, and he is not entitled to a new trial on this basis. See Stridiron,
698 F.2d at 206–07.
B. The District Court Did Not Abuse Its Discretion by Striking Part,
Rather Than All, of DeMarco’s Testimony, and Thus It Did Not Err in
Denying a New Trial on That Basis.
McManus next argues that a new trial is warranted because the District Court
struck only part of DeMarco’s testimony. To prevail, McManus must first establish that

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the District Court’s evidentiary ruling – allowing part of DeMarco’s testimony to be
considered by the jury – was an abuse of discretion. For this type of evidentiary ruling to
be an abuse of discretion, the ruling must have been “arbitrary, fanciful[,] or clearly
unreasonable,” such that “no reasonable person would adopt the District Court’s view.”
Ansell v. Green Acres Contracting Co., 347 F.3d 515, 519 (3d Cir. 2003) (quoting Stecyk
v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002)). If McManus makes
that first-tier showing, then a new trial may be permitted within a district court’s sound
discretion, unless an opposing party can establish that the error did not affect McManus’s
“substantial rights.” Fed. R. Civ. P. 61.
McManus contends that the partial striking of DeMarco’s testimony was an abuse
of discretion because, to the jury, the stricken part of the testimony would eclipse the
unstricken part. But the District Court’s instruction broadly struck “the whole portion of
the testimony” related to DeMarco’s fourth visit – an instruction that excluded not only
the fact of the visit but also DeMarco’s observations from the visit. Trial Tr. at 55:16
(May 9, 2022) (A650:16). And in his Reply Brief, McManus concedes the effectiveness
of the District Court’s curative instruction: “McManus does not suggest that the jury was
unable to follow the court’s instructions . . . .” Reply Br. at 4–5. Without rebutting the
presumption that the curative instruction was effective, McManus has not established that
the District Court abused its discretion in striking only a portion of DeMarco’s testimony.
Nor was it an abuse of discretion, at least in the absence of an objection on cumulative
grounds, see Fed. R. Evid. 403, to allow a portion of DeMarco’s testimony to remain
unstricken. As the District Court explained, that portion of the testimony was “altogether
redundant” in light of the “mountains of testimony and evidence on the issue of the lock.”

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McManus v. Walgreens Co., No. 21-cv-2285, Mem., ECF No. 171 (E.D. Pa. Aug. 30,
2022) (A26).
McManus also argues that by partially striking DeMarco’s testimony, the District
Court made it “impossible to effectively impeach DeMarco on cross-examination . . . .”
Appellant’s Br. 45. Specifically, McManus asserts that he could have impeached
DeMarco by using other evidence to contradict the stricken portion of DeMarco’s
testimony. But impeachment by contradiction is available only for in-court statements,1
and with that part of the testimony stricken, McManus could not impeach those portions
of DeMarco’s testimony by contradiction. Even if DeMarco could have been impeached
by stricken testimony, the loss of that opportunity did not harm McManus’s substantial
rights considering the limited probative value of his unstricken testimony – on which he
was cross-examined – as well as the abundance of other evidence supporting the jury’s
verdict. Accordingly, the District Court did not abuse its discretion in striking only a
portion of DeMarco’s testimony.
Without demonstrating that the District Court abused its discretion with respect to
its evidentiary ruling or that the evidentiary ruling affected his substantial rights,
McManus cannot show that the District Court abused its discretion by denying a new
trial.
* * *
For these reasons, we will affirm the judgment of the District Court.
1 United States v. Castillo, 181 F.3d 1129, 1132 (9th Cir. 1999) (“[I]mpeachment by
contradiction permits courts to admit extrinsic evidence that specific testimony is false,
because contradicted by other evidence.”).

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