214 F.3d 1235 (10th Cir. 2000), 98-2340, Smith v. Ingersoll-Rand Co.

Docket Nº:98-2340
Citation:214 F.3d 1235
Party Name:RON SMITH and LUCY SMITH, Plaintiffs-Appellees, v. INGERSOLL-RAND COMPANY, Defendant-Appellant.
Case Date:June 07, 2000
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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214 F.3d 1235 (10th Cir. 2000)

RON SMITH and LUCY SMITH, Plaintiffs-Appellees,


INGERSOLL-RAND COMPANY, Defendant-Appellant.

No. 98-2340

United States Court of Appeals, Tenth Circuit

June 7, 2000


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John M. Kobayashi (Bennett L. Cohen, The Kobayashi Law Firm, P.C., Denver, Colorado; and Barry Ostrager, Mary Beth Forshaw, and Daniel H. Tabak, Simpson Thacher & Bartlett, New York, New York, with him on the briefs), The Kobayashi Law Firm, P.C., Denver, Colorado, for Defendant-Appellant.

Esteban A. Aguilar (James A. Branch, Jr. and Michael B. Browde, Albuquerque, New Mexico, with him on the brief), Aguilar Law Offices, Albuquerque, New Mexico, for Plaintiffs-Appellees.

Before HENRY and PORFILIO, Circuit Judges, and WEINSHIENK,[*] District Judge.

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PORFILIO, Circuit Judge.

Ingersoll-Rand Company appeals from a judgment entered following a jury verdict assessing a total of $27,268,661 in actual and punitive damages for injuries arising from an incident in which a machine manufactured by the company injured appellee, Ron Smith. Ingersoll-Rand contends the district court erred on numerous grounds warranting reversal. We disagree and affirm.


At the center of this case is a large piece of construction equipment known as a milling machine. Used to remove pavement prior to resurfacing a road, this machine "chews" through asphalt or concrete with a revolving cutting drum and ejects the debris out the front of the machine on a conveyer belt into a waiting dump truck. To insure the machine cuts to a uniform depth, a pair of sensor "skis" drag along the surface of the road on either side of the cutting drum, following the undulations of the road surface and raising or lowering the drum to maintain a consistent cut depth. Testimony at trial indicated these sensor skis periodically become clogged with the detritus incumbent in the milling operation and jam in a position above the road surface. This forces the cutting drum to rise out of the cut and effectively halts the milling operation until the skis can be dislodged.

Operation of the milling machine requires a crew of two or three people, an operator who drives the machine, and one or two groundsmen, who walk in close proximity to the sides of the machine, setting the depth of cuts, telling the operator when to begin and end cuts, alerting the operator of obstructions such as manhole covers, and dislodging the sensor skis when they become jammed. Testimony at trial indicated groundsmen commonly free the jammed skis by hammering them back down into position with a shovel or hammer.

On April 5, 1993, Ron Smith was a groundsman for a road crew operating an Ingersoll-Rand milling machine in Las Cruces, New Mexico. Toward the end of the workday, Mr. Smith was using a short sledgehammer to dislodge a jammed ski while the machine backed up. The machine operator, apparently unaware of Mr. Smith's presence, turned the wheels to reposition the machine for a new cut. Mr. Smith's right foot became trapped under the front tire of the machine, crushing his foot and injuring his lower leg to a degree that necessitated the surgical amputation of his right leg above the knee.

Mr. Smith and his wife, Lucy, sued Ingersoll-Rand under theories of strict liability and negligence. The Smiths alleged the milling machine was dangerously defective because of the lack of mirrors which would enable the driver to see the sides and rear of the machine, the jamming of the ski system, the lack of guards around the front tires, and a lack of warning signs. At trial, the Smiths contended Ingersoll-Rand had "rushed" the milling machine to market without undertaking adequate safety studies and that the company failed to add safety features even after several accidents made the machine's defects obvious. At the close of the evidence, Ingersoll-Rand moved for judgment as a matter of law. The district court denied the motion, and the jury found in favor of the plaintiffs, awarding Mr. Smith $8,529,465.20 and Mrs. Smith $1,279,192.51 in compensatory damages, and imposing $17,400,000 in punitive damages. Ingersoll-Rand then renewed its motion for judgment as a matter of law, and, in the alternative, moved for a new trial or a remittitur of damages. The district court denied these motions. Ingersoll-Rand now raises a superfluity of issues on appeal.


We begin with Ingersoll-Rand's claim that a new trial is necessitated by the jury's exposure to extrinsic materials during deliberations. In the course of deliberations

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the jury requested a large writing tablet. In response to their request, the jurors were given an easel and large notepad which, unbeknownst to the court, contained nine pages of information written by the plaintiffs' counsel and one of the plaintiffs' experts during trial. When the notepad was discovered in the jury room after deliberations, the district court notified counsel and held two evidentiary hearings to determine whether the jurors were exposed to the pages. After hearing the testimony of the jury foreman and the juror who had acted as scribe, the district court determined there was not the "slightest possibility" Ingersoll-Rand was prejudiced by the presence of the notepad pages in the jury room. Ingersoll-Rand contends the district court erred and it is entitled to a new trial.

Unfortunately, this Court appears to have developed two different standards by which a trial judge is to assess the impact of exposure to extraneous material on a jury. In one vein of our case law, we have held jury exposure to extrinsic material warrants a new trial if there is the "slightest possibility" the exposure affected the verdict. See United States v. Byrne, 171 F.3d 1231, 1235-36 (10th Cir. 1999) (upholding district court's finding there was not the "slightest possibility" harm resulted from unadmitted exhibit inadvertently given to jury); United States v. Jaramillo, 98 F.3d 521, 525 (10th Cir. 1996) (same); United States v. Wood, 958 F.2d 963, 965-67 (10th Cir. 1992) (upholding grant of new trial where district court found slight possibility jury exposure to a prosecution exhibit inadvertently left in jury room might have harmed defendant); Johnson v. Makowski, 823 F.2d 387, 390-91 (10th Cir. 1987) (upholding district court's finding of not even the slightest possibility of harm where defense exhibit not received into evidence was given to jury); United States v. Marx, 485 F.2d 1179, 1184 (10th Cir. 1973) (finding, given overwhelming evidence of defendants' guilt, there was not the slightest possibility the presence of unadmitted government exhibits in jury room harmed the defendants).

In a second vein, we have held jury exposure to extraneous information creates a "presumption of prejudice" which may be rebutted by showing the exposure was harmless. See United States v. Aguirre, 108 F.3d 1284, 1288 (10th Cir. 1997) (holding jury's use of dictionary to look-up the definition of a term relevant to defendant's alleged offense raised presumption of prejudice); Mayhue v. St. Francis Hospital of Wichita, Inc., 969 F.2d 919, 922-26 (10th Cir. 1992) (upholding district court's order of new trial on basis that plaintiff failed to overcome presumption of prejudice raised by jury foreman's use of dictionary to define legal terms for other jurors); United States v. Hornung, 848 F.2d 1040, 1043-45 (10th Cir. 1988) (upholding presumption of prejudice test where third party volunteered information about criminal defendant to juror); United States v. Day, 830 F.2d 1099, 1139 (10th Cir. 1987) (upholding use of the presumption of prejudice approach when juror held brief conversation with government witness in court restroom); United States v. Greer, 620 F.2d 1383, 1385 (10th Cir. 1980) (upholding the application of the presumption of prejudice approach where U.S. Marshal engaged juror in conversation during lunch break at trial); United States v. Gigax, 605 F.2d 507, 515 (10th Cir. 1979) (upholding use of the presumption of prejudice approach to conversations between jurors and third parties).

Ingersoll-Rand urges us to conflate the two approaches, arguing we should presume prejudice, and then allow the rebuttal of that presumption only upon a showing that there is not the slightest possibility the extrinsic evidence affected the verdict. Such an approach has superficial appeal, but is inconsistent with our case law, which clearly treats the two approaches as independent methods of appraising the impact of extrinsic evidence on a jury. The critical distinction between the two approaches, of course, may be found in the placement of the initial burden of proof. Under the "slightest possibility" approach the burden ­ however

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light of showing that harm occurred rests on the moving party. In contrast, the presumption of prejudice approach relieves the moving party of any burden and forces the nonmovant to prove any exposure was harmless.

One may posit factual distinctions between the situations in which this Court has employed the presumption of prejudice approach and those in which we have employed the slightest possibility approach: generally, we appear to use the latter when unadmitted trial exhibits stray into the jury room, while the former is generally applied where jurors actually come into contact with third parties. However, such factual distinctions strike us as tenuous at best, and we can see no justifiable jurisprudential reason why a jury's exposure to written statements not in evidence should be...

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