The Seventh Circuit Court of Appeals reversed the trial court”?s decision to allow the jury to inspect a ladder which had been introduced by the defendant as demonstrative evidence. In Baugh ex rel Baugh v. Cuprum S.A.DE C.V., 730 F.3d. 701 (7th Cir. 9-13-2013) Plaintiff suffered a severe brain injury when a ladder he was using to clean his gutters buckled and collapsed. His wife brought this suit on his behalf against the manufacturer alleging defective design and negligence. There were no eyewitnesses to the incident and as a result of his injury John Baugh could not testify about what happened. At trial the plaintiff objected to the use of a new exemplar ladder and the defendant explained that it was a demonstrative exhibit that would be used during the direct examination of defendant”?s expert. Further, it is not substantive evidence and will not be offered as substantive evidence. The district judge determined that since it was being used as a demonstrative exhibit any objections that the plaintiff had were irrelevant because the ladder was being offered only as a demonstrative exhibit.
The demonstrative exhibit was not sent to the jury for use in deliberations but after about two hours the jury sent a note to the court asking to see the exemplar ladder. The court agreed initially with the plaintiff that demonstrative evidence is normally not sent back to the jurors but asked plaintiffs”? counsel to explain how the plaintiff would suffer prejudice if the ladder were allowed in the jury room during deliberations. After hearing the explanation the district court overruled the objection and advised the jury that it could look at it in the courtroom but it would not be sent into the jury room. The jury did not look at the ladder but the next day the jury renewed its request to see the ladder and asked if they could step on it and ultimately on the third day of deliberation the court allowed the ladder to go into the jury room telling the jury, in a note that they could fully examine the ladder but under no circumstances were they to endeavor to reconstruct the occurrence. The exemplar ladder was delivered to the jury room and about three hours later the jury returned a verdict in favor of the defendant.
The Court of Appeals made an exhaustive review of demonstrative evidence and after considering cases from other jurisdictions allowing demonstrative evidence to go to the jury, reversed the trial court and ordered a new trial. The court said:
“Demonstrative exhibits that are not admitted into evidence should not go to the jury during deliberation, at least not without consent of all parties. We would not allow a lawyer to accompany the jury into the deliberation room to help the jurors best view and understand the evidence in the light most favorable to her client. The same goes for objects or documents used only as demonstrative exhibits during trial.”
Upon a retrial in the district court before a different judge the plaintiff obtained a verdict for $11,142,929.00.