Veliz v. Crown Lift Trucks

• Decision Date: 01 June 1989
• Docket Number: No. CV 84-2746.,CV 84-2746.
• Citation: 714 F. Supp. 49
• Parties: Javier VELIZ, Plaintiff, v. CROWN LIFT TRUCKS, Defendant.
• Court: U.S. District Court — Eastern District of New York

714 F. Supp. 49

Javier VELIZ, Plaintiff, v. CROWN LIFT TRUCKS, Defendant.

No. CV 84-2746.

United States District Court, E.D. New York.

June 1, 1989.

Richard Leotta and Joseph Napoli, Morris J. Eisen, P.C., New York City, for plaintiff.

J. Joseph Bainton and William Dunnegan, Shea & Gould, New York City, for defendant.

MEMORANDUM AND ORDER

DEARIE, District Judge.

This matter is before the Court on plaintiff's motion to set aside the judgment and for a new trial, and defendant's motion for sanctions. For the reasons set out below, plaintiff's motion is denied and defendant's motion for sanctions is granted.

I. Motion to Set Judgment Aside and For a New Trial

A. Demonstrative Evidence

Plaintiff commenced this products liability action against defendant Crown Lift Trucks ("Crown") seeking to recover for injuries sustained in the operation of one of defendant's lift trucks. Relying on theories grounded in negligence, breach of warranty, and strict products liability, plaintiff claimed that defendant's lift truck was defective because, inter alia, the stopping distance of the truck was excessive and because Crown did not install a door on the operating compartment of the lift truck used by plaintiff. The jury found for the defendant on all of plaintiff's claims.

During the trial, the Court permitted, over plaintiff's objection, a live demonstration of the operation of a lift truck that was substantially similar, but not identical, to the truck operated by the plaintiff at the time he sustained his injuries. In addition, the Court admitted, again over plaintiff's objection, certain videotapes, which depicted a lift truck carrying loads of varying weights to demonstrate the physical and mechanical principles involved in the braking of lift trucks. The brief, live demonstration, which was conducted under the supervision of the Court in the basement of the courthouse, was permitted to familiarize the jury with the operations of lift trucks in general and was accompanied, before and after, with specific instructions to the jury.

Plaintiff contends that the demonstration and videotapes were cumulative and prejudicial. Further, plaintiff complains that the jury was not given a "list" of the similarities and differences between the demonstrations and the actual conditions.

It is, of course, firmly established that the decision whether to admit evidence of experimental tests or demonstrations is a matter left to the sound discretion of the trial judge. See Szeliga v. General Motors Corp., 728 F.2d 566, 567 (1st Cir.1984); Randall v. Warnaco, Inc., 677 F.2d 1226, 1233 (8th Cir.1982). "A court may properly admit experimental evidence if the tests were conducted under conditions substantially similar to the actual conditions. Admissibility, however, does not depend on perfect identity between actual and experimental conditions. Ordinarily, dissimilarities affect the weight of the evidence, not its admissibility." Champeau v. Fruehauf Corp., 814 F.2d 1271, 1278 (8th Cir.1987). See Szeliga v. General Motors Corp., supra, 728 F.2d at 567; Nanda v. Ford Motor Company, 509 F.2d 213 (7th Cir.1974); Millers' Nat. Ins. Co. v. Wichita Flour Mills Co., 257 F.2d 93, 99-100 (10th Cir. 1958). The notion underlying the admission of such evidence in a products liability case is that it fosters a better understanding by the jury of the product, issues, and often abstruse expert testimony involved. As one treatise writer notes succinctly, such evidence "may be strikingly effective in adding vividness to the spoken word." McCormick on Evidence § 215, at 536 (Cleary ed. 1972). See also Millers' Nat. Ins. Co., 257 F.2d at 99 (demonstrative evidence used as a means to "enable or assist the expert witness to make an understandable communication of admissible matter with reasonable accuracy and expedition").

To be sure, there are certain dangers inherent in the admission of demonstrations, as there exists the possibility of juror confusion about the precise purpose of the demonstrations. Courts have recognized, however, that when accompanied by limiting instructions or testimony detailing the dissimilarities between the demonstration and actual conditions, it is not error to admit demonstrations that are substantially similar to, but do not mirror, the actual conditions involved. See Champeau, supra, 814 F.2d at 1278; Nanda, supra, 509 F.2d at 223; Millers' Nat. Ins. Co., supra, 257 F.2d at 99.

For instance, in Champeau, plaintiff, who was injured while operating one of the defendant's trucks, claimed that the braking system on the truck was defective. The defendant proffered a videotaped experiment designed to show that, under the applicable laws of physics, the accident could not have occurred as the plaintiff had described it. Although there existed certain dissimilarities between the experiment and the actual conditions, the trial court admitted the experiment along with a written list of the differences and similarities. On appeal, the court held that, in light of the similarities in conditions and the list of differences and similarities, it was not error for the trial court to admit the videotaped experiment. 814 F.2d at 1278. The court also noted that "the experiment did not need to be performed in similar circumstances in order to be admissible because it did not purport to be a recreation of the accident and it was merely used to demonstrate general principles of physics as applied to plaintiff's testimony." Id.

Similarly, in Nanda, the plaintiff was injured when his car became engulfed in flames following a rear-end collision. Plaintiff alleged that the fire was attributable to a design flaw in the placement of the fuel tank. At trial, plaintiff's expert was permitted to make a demonstration in which he struck with his hand the filler-neck of the gas tank of the car involved, causing it to disengage from the gas tank. In performing the demonstration, plaintiff's expert had removed steel clamps with which the filler-neck was affixed to the gas tank when assembled. Defendant moved for a mistrial on the ground that the filler-neck would not have disengaged had the filler-neck and gas tank used in the demonstration been held together by the steel clamps, as were the filler-neck and gas tank of the car involved in the accident. The Seventh Circuit upheld the denial of the mistrial motion, noting that the jury had been advised that the clamps had been removed and thus the demonstration did not mirror the actual conditions involved. 509 F.2d at 223. See also Millers' Nat. Ins. Co., supra, 257 F.2d at 99-100 (no error in admitting films of experiments that were not performed under similar conditions but were admitted with cautionary instruction that they were being admitted only for the purpose of illustrating certain principles that the plaintiff contended were applicable in the case).

In the case at bar, the videotapes and the demonstration were substantially similar to the actual conditions. Stated another way, given the limited purposes of the demonstrative evidence, the dissimilarities that did exist were essentially meaningless. Further, although it was not given a written "list," the jury was made fully aware of the dissimilarities between the conditions depicted on the videotape and those of the accident. Mr. Dunlap, defendant's expert, under examination by plaintiff's counsel during a voir dire preceeding the admission of the videotapes, testified that (1) the vehicle used in the videotapes was not the one involved in the accident, (2) the model used in the videotapes had disc brakes rather than the drum brakes of the accident vehicle, and (3) none of the tests was run in reverse even though the accident occurred in reverse. See Transcript, at 621-23. Moreover, the Court cautioned the jury as follows:

All right, ladies and gentlemen, I want you to listen carefully because these instructions are important.

The videotapes you are about to view are being admitted for a limited purpose.

You may not consider them for any other purpose. The videotapes are admitted for the sole purpose of aiding you in your understanding of that portion of Mr. Dunlap's testimony relating to certain physical principles, mechanical principles which were during the course of his testimony at times expressed in the mathematical terms. Now, I emphasize to you and it is very important that you listen to this and remember these tapes do not depict nor are they intended to depict the circumstances of Mr. Veliz's accident. This is not recreation in any sense of the word of that accident. These tapes are merely a guide to you to follow Mr. Dunlap's testimony. By themselves they prove nothing.

You must bear these instructions in mind as you view the tapes and during the course of your deliberations.

Transcript, at 628-29. As to the admission of the live demonstration, the Court cautioned the jury as follows:

Ladies and Gentlemen, my usual practice and I am sure I did it in this case is to tell you at the beginning of the trial that there are a lot of things that happen as the trial progresses that you won't understand why.

Generally there are reasons for everything and in this instance this delay and interruption this morning is explainable for the following reasons. As part of the defense case, the Court is going to permit the inspection of a machine similar to the one used in the accident by you, the jury, and the demonstration of the machine which will take place downstairs in the basement of the court.

We have been attending to those details now. That is why we have been delayed and again, we appreciate your patience.

Now, you must listen very carefully to these limiting instructions or cautionary instructions because they are very important.

We are not trying to in effect reproduce those conditions that occasion the accident and the injury to Mr. Veliz.

This is not a reenactment of the accident.

Indeed, the machine is not the same machine that

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