730 F.3d 701
7th Cir.2013Background
- Plaintiff John Baugh was severely injured when a Cuprum ladder buckled; plaintiff sued for design defect and negligence.
- Defendant Cuprum used a new exemplar ladder, built to the same specifications, as a courtroom demonstrative; the exemplar was marked "for Demonstrative Purposes" and was not admitted into evidence.
- Plaintiff objected pretrial to use of the exemplar (late disclosure and discovery cutoff), but the court allowed its use solely for demonstrative purposes.
- During deliberations the jury repeatedly requested to see, touch, and step on the exemplar; the court initially resisted but ultimately sent the unadmitted exemplar into the jury room over plaintiff’s objection.
- The jury returned a defense verdict shortly after receiving the ladder; plaintiff appealed arguing the court abused its discretion and the error was not harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a demonstrative exhibit not admitted into evidence may be sent to the jury for deliberations over objection | The exemplar was expressly designated demonstrative (not evidence); sending it to the jury prejudiced Baugh because he had no opportunity to treat it as substantive evidence or rebut it | Trial court has discretion to send exhibits to the jury; demonstrative labels are flexible and judge may allow juror inspection | It was an abuse of discretion to send an exhibit that had been used only demonstratively and not admitted into evidence to the jury over objection |
| Whether the label "demonstrative" permits later conversion to substantive evidence without notice | The label should mean the exhibit is not substantive and will not go to the jury absent consent; converting it during deliberations undermines trial fairness | Allowing juror access can be within trial judge’s discretion and harmless absent shown prejudice | The court held the label should be used narrowly: demonstratives are not evidence and should not go to the jury without all parties’ consent |
| Whether prior case law permits sending unadmitted demonstratives to the jury with cautionary instructions | Plaintiff argued longstanding precedent bars sending unadmitted materials to juries absent consent; Downen/Big John are outliers | Defendant relied on cases (and discretion) permitting such practice in some circuits | The court distinguished prior cases and concluded no controlling authority authorized treating an unadmitted demonstrative as evidence during deliberations |
| Whether the error was harmless | Plaintiff: prejudice was likely because he had no chance to test or rebut the exemplar as evidence; counsel relied on demonstrative designation | Defendant: no clear prejudice shown; trial evidence supported defense | The court found the error not harmless and ordered a new trial |
Key Cases Cited
- Bankcard America, Inc. v. Universal Bancard Sys., 203 F.3d 477 (7th Cir. 2000) (error to send unadmitted documents to jury but treated as harmless in that case)
- Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132 (7th Cir. 1992) (sending an unadmitted damages summary to jury was error but harmless where it merely duplicated stipulations)
- Deicher v. City of Evansville, 545 F.3d 537 (7th Cir. 2008) (standard: district court’s decision on sending admitted exhibits to jury reviewed for abuse of discretion)
- United States v. Natale, 719 F.3d 719 (7th Cir. 2013) (permitted jury access to demonstratives that had been admitted into evidence)
- United States v. Salerno, 108 F.3d 730 (7th Cir. 1997) (upheld sending an admitted scale model to jury room when used evenhandedly)
- United States v. Downen, 496 F.2d 314 (10th Cir. 1974) (Tenth Circuit allowed an unadmitted government chart to go to jury with cautionary instructions; viewed as an outlier)
- Big John, B.V. v. Indian Head Grain Co., 718 F.2d 143 (5th Cir. 1983) (Fifth Circuit affirmed verdict after jury used a damages chart that had not been admitted; another outlier)