US Court of Appeals Reverses Jury Verdict Over the Use of Demonstrative Evidence in the Jury Room

John Baugh sustained a severe brain injury when the Cuprum ladder that he was using to clean his gutters buckled and collapsed. Baugh’s wife Sharon filed a lawsuit on his behalf against Cuprum C.V. claiming that the defective design and the manufacturer’s negligence was the cause of her husband’s injuries.  John could not testify as to what happened to him because of his injuries.

About three months before the beginning of the trial, the defendant, Cuprum, informed plaintiff’s attorney that it intended to use an exemplar of the actual ladder at the jury trial. The exemplar ladder was new, but had been built to the exact specifications to the ladder that Baugh had used. In a pretrial conference on Feb. 1, 2011, Cuprum’s exemplar ladder was marked as an exhibit “for Demonstrative Purposes.”  The plaintiff’s counsel objected to any use of the new exemplar ladder at trial. Discovery had been closed for two years. The ladder had not been included in Cuprum’s expert disclosures. 

In response to the objection, Cuprum argued that the exemplar ladder was for demonstrative purposes and that it would be used during direct examination of its expert witness. It was not intended to be substantive evidence.  Cuprum also argued that the exemplar ladder would be used to demonstrate and help the jury understand the expert’s testimony. 

The district court judge ruled that since the ladder was being offered as a demonstrative exhibit, the plaintiff’s objection to untimely disclosure was irrelevant. The court then allowed the ladder to be displayed and used in the courtroom during the trial testimony  by Cuprum’s expert. 

Cuprum used the exemplar ladder during the trial arguing that its design was effective and that the ladder would not collapse under normal load use with all four legs on the ground.In addition, Cuprum’s expert showed the jury a video inwhich he tested the strength and stability of the ladder. The video also showed the expert 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.The demonstrative exhibit, the exemplar ladder, was not sent to the jury room for use in its deliberations. But about 2 hours into the jury’s consideration of the case, the jury sent a note to the judge asking to see the exemplar ladder.  The judge asked if there were any objections to the jury’s request. Plaintiff’s 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 . . .”

The judge at first agreed with the plaintiff, but then asked the plaintiff’s counsel to explain why it was prejudicial to allow the ladder into the jury room. Plaintiff’s counsel then referred the judge back to the fact that the ladder was not disclosed before the pretrial conference and discovery disclosures and that the exemplar ladder was to be used only as a demonstrative exhibit.  The judge in a sense compromised by overruling the plaintiff’s objection and allowed the jurors to view the exemplar ladder in the courtroom.The judge also sent a note to the jury that said, “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.” 

On the second day of deliberations, the jurors asked for the ladder again, and the Baugh family attorney objected. Once again, the judge overruled plaintiff’s objections and permitted the jury to enter the courtroom to look at the ladder. Finally, on the third day, after many arguments about the use of the ladder, the judge permitted the ladder to go into the jury room with another note. 

In deciding this appeal, the court of appeals stated that the trial court has discretion in determining which exhibits are provided to the jury during deliberations.  Deicher v. City of Evanston, 545 F.3d 537, 542 (7th Cir. 2008).

However, demonstrative exhibits are not admitted into evidence and pose a different issue. The general rule is that materials not admitted into evidence simply should not be sent to the jury for use in its deliberations. Bankcard America, inc. v. Universal Bancard Systems, Inc., 503 F.3d 477, 483 (7th Cir. 2000).

This court held that without consent of all parties, a deliberating jury may not consider exhibits not actually admitted into evidence. The court and counsel understood that the trial judge’s ruling on the exemplar ladder meant that it was not actually admitted into evidence and would not be available to the jury during deliberations. 

Labeling an exhibit “demonstrative” signifies that the exhibit is not itself evidence. The term “demonstrative” does not appear in the text of the Federal Rules of Evidence, nor does it appear in a single state evidence code.  Brain & Broderick. 

In sum, a “demonstrative exhibits,” when the term is used in the narrow sense, is not admitted as substantive evidence under the Federal Rules of Evidence. The court of appeals would find that the use of the exemplar ladder in the jury room was an abuse of discretion because it was not in evidence.  There was still the issue of whether the court allowing the exemplar ladder in the jury room was harmless or not.  The court found that the error was not harmless because the plaintiff’s counsel was lulled unintentionally into what turned out to be a false complacency that the ladder was not being offered as evidence, yet during jury deliberations, the exemplar ladder was converted into a substantive piece of evidence that the jury could see, touch, handle, step on, and otherwise manipulate. The plaintiff never had a chance to rebut the effects of the ladder’s introduction into the jury’s deliberation and was prejudiced by his inability to respond to the ladder as substantive evidence. 

Because the jury had the benefit of the exemplar ladder in its possession for more than three days of deliberation, the court of appeals could not say that the use of the ladder was decisive, therefore, meaning that the error was not harmless. The court agreed with plaintiff in that the district court erred in allowing the ladder to be used by the jury during deliberations.  Accordingly, the jury’s verdict was reversed and returned to the district court for a new trial.

Baugh v. Cuprum, No. 12-2019 (U.S. 7th Cir., Sept. 13, 2013).

Kreisman Law Offices has been handling product defect cases, pharmaceutical injury cases and nursing home abuse cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Morton Grove, Melrose Park, Northlake, Schaumburg, Worth, Bedford Park, Chicago (Little Italy, Jefferson Park, Grand Crossing, South Shore), Evergreen Park, Elk Grove Village, Harvey, Hazel Crest, South Holland and Country Club Hills, Ill.

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