Baugh ex rel. Baugh v. Cuprum S.A. de C.V.

730 F.3d 701, 92 Fed. R. Serv. 495, 2013 WL 4875003, 2013 U.S. App. LEXIS 19055
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 13, 2013
DocketNo. 12-2019
StatusPublished
Cited by22 cases

This text of 730 F.3d 701 (Baugh ex rel. Baugh v. Cuprum S.A. de C.V.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baugh ex rel. Baugh v. Cuprum S.A. de C.V., 730 F.3d 701, 92 Fed. R. Serv. 495, 2013 WL 4875003, 2013 U.S. App. LEXIS 19055 (7th Cir. 2013).

Opinion

HAMILTON, Circuit Judge.

This appeal requires us to clarify what is meant when an exhibit is labeled “demonstrative” and is not actually admitted into evidence. In this product liability trial, a defense expert illustrated his testimony by using an exemplar of the product in question, a ladder that had collapsed while the plaintiff was using it. Although plaintiff had objected to use of the exemplar ladder as substantive evidence, the court allowed its use for solely demonstrative purposes. During jury deliberations, the jury asked to see, touch, and step on the ladder. Over plaintiffs objections, the district court sent this object, which was never admitted into evidence, to the jury for use during its deliberations. We hold that it was an abuse of discretion to send this object to the jury over a party’s objection when it was not admitted into evidence during trial. We also hold that the error was not harmless, so we reverse the district court’s judgment and remand for a new trial.

I. Facts

Plaintiff John Baugh suffered a severe brain injury when the Cuprum ladder he was using to clean his gutters buckled and collapsed. Baugh’s wife Sharon brought this suit on his behalf against Cuprum S.A. de C.V. alleging defective design and negligence. There were no eyewitnesses to the incident. As a result of the injury, Mr. Baugh could not testify about what happened.

On December 21, 2010, about three months before trial, Cuprum informed plaintiffs counsel that it intended to use an exemplar of the actual ladder at trial. The exemplar ladder was new but had been built to the exact specifications of the ladder Mr. Baugh had been using. In a pretrial conference on February 1, 2011, the exemplar ladder was marked as an exhibit “for Demonstrative Purposes.” Plaintiff objected to any use of the new exemplar ladder. Discovery had closed two years earlier, and the ladder had not been included in Cuprum’s expert disclosures.

In response to the objection, Cuprum explained, “it’s simply demonstrative exhibits that we’ll use during the direct examination of [Cuprum’s expert].... And these exhibits are demonstrative. They are not substantive evidence. They are not to be admitted for substantive evidence. It’s just simply to demonstrate and help the jury understand his testimony.” R. 300-8 at 67-68. The district judge determined that since the ladder was being offered only as a demonstrative exhibit, plaintiffs objections to untimely disclosure were irrelevant: “[T]he fact that it wasn’t disclosed in connection with the experts’ reports isn’t by itself problematic to me if what we are talking about is demonstrative.” R. 300-3 at 68. The court thus permitted the ladder to be displayed and used in the courtroom during trial testimony by Cuprum’s expert.

[704]*704Cuprum used the exemplar ladder during trial to argue that, contrary to the design defect theory offered by plaintiffs expert, the ladder would not collapse under a normal load with all four legs on the ground. Cuprum’s expert presented testimony and video in which he tested the strength and stability of the ladder. The video also showed him performing other tests that included jumping on the ladder as if it were a pogo stick and tipping the ladder in different positions.

The jury began its first day of deliberations around noon. As a demonstrative exhibit, of course, the ladder was not sent to the jury for use in deliberations. After about two hours, though, the jury sent a note to the judge asking to see the exemplar ladder. Tr. 1301. The judge asked if there were any objections to the jury’s request. Plaintiffs counsel objected on the basis that the ladder “was introduced for—or brought into the courtroom for demonstrative purposes.... It was not offered into evidence by either side, and no witness did anything other than refer to it. And I respectfully say that it would be highly improper to have that demonstrative piece of equipment go to the jury.” Tr. 1301-02. The judge initially agreed with plaintiff, noting that the ladder had been offered and used only as a demonstrative exhibit and that “demonstrative evidence is normally not sent back to the jurors.” Tr. 1302.

The judge then asked plaintiffs counsel to explain how plaintiff would suffer any prejudice if the ladder were allowed in the jury room during deliberations. Plaintiffs counsel argued that the prejudice resulted from the fact that the ladder had been originally labeled as a demonstrative exhibit and that both parties agreed that it would not be admitted as substantive evidence. Counsel said he had relied on this assurance, provided by the court in the pretrial conference where his objection had been overruled precisely because the ladder would be used only as a demonstrative exhibit. Counsel also said he had developed his trial strategy on the assumption that the ladder was not substantive evidence that might be available to the jury during its deliberations. Plaintiffs counsel framed his objection on that basis: “It’s a piece of demonstrative evidence, and I think the rules are pretty clear—or at least the practice in this courthouse, as far as I have known, has never been that they go back [to the jury].” Tr. 1302. Plaintiffs counsel explained that if he had known the ladder might go back to the jury room, he would have had his own experts test the ladder. Tr. 1301-03.

The district judge then overruled plaintiffs objection and allowed the jurors to view the exemplar ladder in the courtroom. The judge sent the following note to the jury: “Dear Jurors: The exemplar ladder is a demonstrative exhibit. It was not admitted in evidence. You may, if you wish, step into the courtroom to look at the exemplar ladder, but we will not be sending it into the jury room during your deliberations.” Tr. 1312-13. After receiving the note, however, the jury seemed to have lost interest in the ladder and did not actually look at it that day.

The second day, though, the jury renewed its request. Tr. 1316. Plaintiffs counsel renewed his objection: “There was never any representation that ladders were going to be not only used in the courtroom but the jurors would have access to them.... ” Tr. 1319. Once again, the judge asked plaintiffs counsel to identify the prejudice that would result from allowing the jury to see and touch the ladder. The judge again rejected counsel’s argument that the prejudice came from the fact that plaintiff did not have any warning that the exemplar ladder would go to the jury: “Again, apart from the fact [705]*705that this is not what you were expecting or planned for, I want to know what the prejudice is. How is your client prejudiced?” Tr. 1320-22. Plaintiffs counsel tried again: “[I]f I knew exemplars were going to be there, my experts would have advised me—if I knew the individuals were going to be playing with exemplar ladders and so forth in the courtroom, I would have spoken to my experts. I don’t know what they would have told me. But that’s one of the reasons that we have cutoffs on discovery.” Tr. 1324. The court overruled plaintiffs objections and permitted the jury to enter the courtroom by themselves and to look at the ladder. Tr. 1333.

Approximately twenty minutes later, the jury sent a note asking if they could step on the ladder. Plaintiffs counsel again objected and raised additional objections regarding potential juror reconstruction of the accident. Tr. 1334-38. “And as your Honor said, taking demonstrative evidence into a jury room is something which is—I don’t think it’s ever done.” Tr. 1334.

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Bluebook (online)
730 F.3d 701, 92 Fed. R. Serv. 495, 2013 WL 4875003, 2013 U.S. App. LEXIS 19055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baugh-ex-rel-baugh-v-cuprum-sa-de-cv-ca7-2013.