The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
Plaintiff John Baugh fell from a ladder on August 1, 2006, and suffered severe brain injuries. In this lawsuit, Baugh and his wife Sharon Baugh sued Defendant ladder manufacturer Cuprum S.A. de C.V. (the "Defendant"),*fn1 alleging that defects in the ladder were responsible for his injuries. The jury returned a verdict in favor of Defendant. Plaintiff now moves pursuant to FED. R. CIV. P. Rules 50(b) and 59(a)(1)(A) for a new trial. Plaintiff argues that the court erred in granting the jury's request for access to a demonstrative exhibit-an exemplar of the ladder at issue-during their deliberations. For the reasons presented here, the motion is denied.
Plaintiff John Baugh sustained severe head injuries in an accident on August 1, 2006. There were no eyewitnesses to the accident and tragically, Plaintiff Baugh is unable to testify coherently about the incident. Instead, Plaintiff offered circumstantial evidence, including Mr. Baugh's stated intention to clean the gutters on his garage; the position in which he was found, seated on his driveway, holding a screwdriver; and the fact that the ladder was found lying near him on the driveway, on one side, with a bent metal leg. Plaintiff's theory, supported by this evidence and by expert testimony, was that Mr. Baugh, known to be a careful man, climbed on the ladder to clean his gutters and that the ladder's frame suddenly bent and failed under ordinary use. Plaintiff believes the fact that the metal ladder was found on its right side, with its leg bent upward, is powerful evidence in support of this theory.
Defendant countered this with evidence that the ladder in question met all relevant industry standards. Indeed, Sharon Baugh herself testified that she had used the ladder a handful of times prior to the accident. She had no trouble using it, did not find it wobbly or unstable, and had no safety concerns. Defendant also offered expert testimony that illustrated how the accident could have happened in the absence of any defect in the ladder. Specifically, Defendant suggested the ladder Mr. Baugh chose to use was a bit too short to enable him to reach the gutter comfortably, and that damage to the ladder was consistent with the possibility that Mr. Baugh had put his weight on the paint shelf, rendering the ladder unstable and resulting in its collapse. Defendant illustrated this theory with a videotape demonstration, and it appealed well to common sense.
The jury heard evidence for two weeks. Soon after beginning their deliberations on March 7, 2011, they asked to have access to a demonstrative exhibit, which had not initially been sent back to the jury room. Specifically, they wanted to see and inspect an exemplar of the ladder in question, which had been shown to them during the trial and had been used to illustrate certain testimony. The court was initially reluctant to permit this; demonstrative exhibits-which often consist of maps, drawings, or charts-are not ordinarily sent back with other exhibits. More importantly, the court was concerned that one of the jurors might climb improperly and injure him/herself. Plaintiff objected to the jurors' having any access to the ladder; counsel argued that the existence of the exemplar ladder was a surprise, and that any use by the jury would be inconsistent with Judge Coar's pretrial rulings prohibiting any "reconstruction" of the accident.*fn2 The jurors repeated their request, however, and the court ultimately overruled the objection and permitted them to examine the ladder in deliberations. A defense verdict swiftly followed.
Plaintiff's post-trial motion challenges the court's rulings on the exemplar ladder for all the same reasons addressed on the record during jury deliberations. Specifically, Plaintiff contends that the exemplar ladder should not have been used at all because Defendant failed to disclose its existence in a timely fashion. The error was compounded, Plaintiff urges, when the jurors were permitted to touch and climb on the exemplar ladder during their deliberations. Plaintiff reiterates that "reconstruction" of the accident was improper and notes that, although the court instructed the jurors not to attempt to reconstruct the accident, the court did not define that term.
The untimely notice objection requires little discussion. Defense counsel satisfied the court that exemplar ladders had in fact been available for Plaintiff's counsel to review well in advance of the trial. Plaintiff notes that the existence of the exemplar was not disclosed during two pretrial conferences conducted by Judge Coar. It did, however, appear in a list of Defendant's exhibits produced no later than December 2010, and Defendant furnished Plaintiff's counsel with photographs of the exhibit. More importantly, it is undisputed that the ladder was available for counsel's inspection on the day prior to, and during, the discovery deposition of Defendant's expert Michael Van Bree. That deposition occurred well prior to trial.
"The decision whether to allow use of demonstrative exhibits is discretionary" with the court. Wipf v. Kowalski, 519 F.3d 380, 387 (7th Cir. 2008); see also Keach v. U.S. Trust Co., 419 F.3d 626, 640 (7th Cir. 2005) ("The decision to admit previously undisclosed testimony is entrusted to the broad discretion of the district court."). In exercising that discretion, the Seventh Circuit has explained, the district court should consider "'(1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date.'" Keach, 419 F.3d at 640 (quoting David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)). None of these factors counseled in favor of exclusion of the exemplar ladder, and none suggest that a new trial is appropriate now. Plaintiff has not suggested that Defendant's failure to disclose the exemplar earlier was a product of bad faith and has not identified any fashion in which its use disrupted the trial. Counsel does insist he was surprised by the ladder, but that surprise predated the trial by at least several weeks. As addressed below, Plaintiff has not explained how he was prejudiced by the jury's consideration of a ladder identical to the one he argues was defective. And any prejudice was readily curable, as the ladder was available for inspection by counsel and testing by his expert(s) on request.
The court concludes that Plaintiff's counsel was aware, well before the trial, of the existence of the exemplar ladder. Had counsel requested access to the exemplar for inspection by his own expert or for testing, the court certainly would have granted such a request. Notably, Plaintiff's own expert freely acknowledged he had not tested his metal failure theory on any ladder prior to offering his expert opinion, and saw no need for testing; the court is left to suspect that appropriate testing would have defeated that theory. In any event, there is no basis on which the court can conclude Plaintiff was denied the right to examine or test the exemplar.
Notably, Plaintiff does not contend that construction or design of the exemplar ladder differed in any way from the one on which John Baugh was injured. At the time counsel argued his objection to the jury's request, the court noted that in light of Plaintiff's theory-that the ladder was constructed in such a way, and of such materials, as to be unsafe in ordinary use-the court would have assumed Plaintiff would welcome the jurors' interest in inspecting and perhaps even testing the exemplar. If the nature of the "ordinary use" that led to ladder failure could somehow have been misleadingly concealed from the jurors during their inspection, Plaintiff did not so argue. Instead, counsel expressed concern about the jurors' "playing" with the ladder-though nothing about their request suggested that the jurors, who had devoted several days to hearing the evidence, had any such frivolous intentions. After the court was satisfied that the ladder had in fact been available to counsel prior to trial, the court pressed counsel repeatedly for an explanation of how the jurors' inspection of the ladder would prejudice his case. In response, Plaintiff offered nothing but speculation. Counsel did suggest vaguely that he might have selected ...