In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1459

KENNETH H. GOODWIN, JR.
and JACQUELINE GOODWIN,

Plaintiffs-Appellees,

v.

MTD PRODUCTS, INCORPORATED,

Defendant-Appellant.



Appeal from the United States District Court
for the Western District of Wisconsin
No. 99 C 220--John C. Shabaz, Chief Judge.


Argued September 12, 2000--Decided November
14, 2000



  Before POSNER, COFFEY, and MANION, Circuit
Judges.

  COFFEY, Circuit Judge. On June 6, 1998,
Kenneth Goodwin suffered an injury to his
left eye after being struck by a plastic
wing nut discharged from the lawn mower
he was using. Based on his injuries,
Goodwin filed a product liability suit
against MTD Products (the manufacturer of
the lawnmower), claiming that: 1) MTD
negligently manufactured the mower; 2)
the mower left MTD’s "possession and
control" in a defective condition; 3) the
mower was unreasonably dangerous; and 4)
MTD breached expressed and implied
warranties relating to the mower. After
trial, the jury awarded Goodwin
$603,167.96 plus costs, and the judge
denied MTD’s motions for judgment as a
matter of law and for a new trial. We
affirm.

I.  BACKGROUND
  In late April 1998, Goodwin purchased an
MTD lawn mower from Wal-Mart and
transported it to his home. According to
Goodwin’s testimony, he

took it out of the truck and laid it by
the front, by the front porch and [he]
opened the box and took the lawn mower
out and the directions and [he] just kind
of flipped through the directions and
glanced at a few things and . . . then he
flipped the handle up and tightened the
wing nuts on the handle and put some oil
and some gasoline in it and started
mowing [his] lawn.

After having used the mower on three or
four prior occasions, Goodwin took the
mower from his garage on June 6, 1998, at
approximately 10:00 in the morning. After
mowing for about 20 minutes, and while
walking directly behind the mower and
approximately five feet from his house,
Goodwin "felt something hit [him] in the
[left] eye and [he] just let go of the
lawn mower and [ ] put [his] hand up to
[his] face and . . . [he] could tell that
[he] was bleeding."/1 Goodwin’s wife
immediately drove him to the emergency
room at Vernon County Hospital in Vernon,
Wisconsin, and he was transferred to
Gunderson Lutheran Hospital in La Crosse,
Wisconsin, the next day for eye surgery.

  A few days after his surgery, Goodwin,
while searching his yard in an attempt to
discover what possibly could have hit him
in the eye, discovered a plastic wing nut
in approximately the same area of the
yard where his injury occurred.
Subsequently, Goodwin filed suit alleging
that the lawn mower was dangerous and
defective in that the plastic wing nut
became loose and fell into the mower’s
blade due to the vibrations caused by the
lawn mower’s motor. According to
Goodwin’s theory, the wing nut was then
propelled out the side chute (facing
down) at a high rate of speed
(approximately 190 miles per hour), hit
the ground, bounced off the ground, hit
the house approximately five feet away,
and ricocheted into his left eye. On the
other hand, MTD claimed that the lawn
mower was properly designed and safe, and
that it would have been impossible for
the plaintiffs’ "ricochet" theory to have
occurred.

  However, Goodwin gave the only eye-
witness testimony regarding the accident
and subsequent injury to his left eye.
Furthermore, Goodwin introduced the
deposition of the doctor who performed
his eye surgery as well as expert
testimony as to the manufacture, design,
and condition of the lawn mower. MTD
attempted to counter Goodwin’s theory
with expert testimony of its own
concerning the manufacture, design, and
operation of the MTD lawn mower.

A.   The Plaintiffs’ Experts

  1.   Dr. Christopher Born

  As the trial judge informed the jury,
"Dr. Christopher Born is a medical doctor
certified in ophthalmology, having
practiced for 20 years at the Gunderson
Lutheran Medical Center in La Crosse,
Wisconsin. He specialized in eye surgery
with a subspeciality in the cornea and
the front part of the eye."

  According to Dr. Born’s deposition
testimony introduced at trial:

I saw Kenneth Goodwin on the 7th of June,
1998 in the emergency room at Gunderson
Lutheran Hospital with an injury to his
left eye. He had a laceration on the left
lower lid. He had a very unusual
laceration to the left cornea.

  The cornea is the front window of the
eye and most lacerations of the cornea
caused by flying objects are more a
direct penetration to the cornea. This
one [Goodwin’s eye injury] started at one
side of the cornea and sliced and shelved
completely across the cornea ending up
just before it entered the eye. The
reason that type of injury is unusual is
because normal objects are either sharp
enough to penetrate directly into the eye
or large enough that they cause a
concussive injury to the eye. This one
[the injury to Goodwin’s eye] was
obviously caused by an object that was
large enough to carry significant
momentum and yet wasn’t particularly
sharp.

  It is my opinion that the broken wing
nut [in this case] is a type of
projectile consistent with the injury to
Mr. Goodwin’s cornea. It satisfies that
criteria, being large enough to cause a
significant blow to the eye and
relatively sharp being cut by the lawn
mower to cause the slice and injury to
the eye.

  After plaintiffs’ attorney finished with
the narrative reading of Dr. Born’s
deposition testimony, the
defendantelected not to offer a
responsive narrative nor did MTD offer
any expert medical opinion of its own.
Thereafter, the plaintiffs called their
engineering expert, Donald Marty.


  2.   Donald Marty

  As the district court informed the
jury,/2

Donald Marty is a licensed professional
engineer with a bachelor’s degree in
mechanical engineering and a master’s
degree in mechanical engineering from the
University of Wisconsin-Madison.

  He has been employed by Safety
Engineering Associates in Madison since
1988 and holds various memberships and
certifications. He has lectured and
attended many continuing education
courses.

  Before reaching any opinion, Marty: 1)
inspected the "subject rope guide and
wing nut from the accident lawn mower";
2) compared the rope guide and wing nut
design used by MTD with other lawn mower
designs; 3) reviewed the operator’s
manual; 4) reviewed the safety standards
published by the American National
Standards Institute (ANSI) for lawn
mowers; 5) reviewed the sales literature
from MTD and Wal-Mart; and 6) reviewed
the depositions of the Goodwin’s, Dr.
Born, and MTD’s expert, Gunter Plamper.
Based on his review of the evidence and
testing he performed to determine the
residual torque of different types of
wing nuts as fastening devices for
different rope guides, Marty concluded
that MTD’s use of a plastic wing nut in
the assembly of the lawn mower’s rope
guide was unreasonably dangerous.

Question: Do you have an opinion to a
reasonable degree of engineering
certainty as to whether or not the lawn
mower, specifically the plastic wing nut
in question, was defective and
unreasonably dangerous as sent by the
manufacturer [MTD] and purchased by the
consumer [Goodwin]?

Answer: Yes. In my opinion it is defective
and unreasonably dangerous.
Questions: Why is that?

Answer: Because the plastic wing nut does
not have a locking feature and it can
easily unthread if it should loosen.

Question: Is it feasible using the exact
design of this mower to use a lock nut
with a plastic or nylon insert?

Answer: Yes it is. . . . That would be the
lock nut and rope guide that I talked
about earlier from the Weed Eater lawn
mower. That design has two features. One,
it has a shoulder formed onto the rope
guide so it can be tightly clamped to the
handle.

  In addition it has the steel lock nut
with a nylon insert which one can tightly
clamp the rope guide to the handle of the
lawn mower and also it has the locking
feature that we’ve been talking about. If
the nut should be loose for whatever
reason, it will not unthread as long as
the nylon locking feature is engaging the
threads. In my opinion that’s a much
safer design.

Additionally, Marty testified that the
plastic wing nut turned "very, very
easily" and demonstrated this by turning
the plastic wing nut with his finger.

  On cross-examination, Marty made it
clear that his testimony was focused
toward the defective nature of the
plastic wing nut used on the MTD lawn
mower and stated, "I have not reviewed or
analyzed other parts of the lawn mower.
They may or may not be defective, but I
do not have opinions." Furthermore, Marty
admitted that the lawn mower complied
with ANSI standards. Additionally, Marty
consistently maintained, throughout both
direct and cross-examination, that the
use of a plastic wing nut was "defective
and unreasonably dangerous" because "the
plastic wing nut does not have a locking
feature and it can easily unthread if it
should loosen" due to the vibrations of
the mower’s motor, and that lawn mowers
should be equipped with steel lock nuts
with nylon threads because it is "a much
safer design."

B. The Defendant’s Expert Gunter
Plamper

  After MTD’s motion for a directed
verdict was denied, the defense called
Gunter Plamper, an engineer, as its
rebuttal expert. Plamper is a registered
professional engineer in Germany and
worked as an engineer in Nuremberg,
Germany, for Siemans Company before
coming to the United States in 1964.
Plamper was initially hired by MTD in
1964 as a project engineer and given the
task of designing a high-end self-
propelled walk-behind lawn mower. In
1970, he was promoted to chief engineer
of consumer products, and remained in
that position until 1994. Currently, he
is MTD’s vice president in charge of
product development and safety.
Furthermore, Plamper holds eight patents
which have been incorporated into mass-
produced products. Additionally, he is
involved with ANSI and is a member of the
Engineering Subcommittee for the Outdoor
Power Equipment Institute as well as a
number of other safety organizations.

  As one would expect, Plamper had a much
different opinion as to the safety of the
MTD lawn mower in question.

Question: Mr. Plamper, in your opinion
based on a reasonable degree of
engineering certainty is this model mower
safe to use?

Answer: Yes.

Question: How so?

Answer: It meets all the requirement[s].
The warnings make the operator aware of
the danger of a thrown object. I mean he
would behave accordingly [sic] to the
warning and the instructions this
accident would not have occurred.

Question: Can the mower be operated safely
without an injury to the operator?

Answer: Yes. There are millions of them
used every day and very safe [sic].

Question: Do you have an opinion, Mr.
Plamper, based on a reasonable degree of
engineering certainty as to the condition
of the machine at the time of design and
manufacture when it left MTD?

Answer: Yes.

Question: And what is your opinion?
Answer: My opinion is when this machine
left MTD it met all the requirements and
was perfectly safe for consumer use.

Question: When it left MTD did it have any
defects?

Answer: It did not have any defects in
manufacturing or design.

  *   *   *

Question: Mr. Plamper, do you have an
opinion based on a reasonable degree of
engineering certainty as to whether or
nor it is safe to use this wing nut on
this mower with this rope guide?

Answer: Yes, I have an opinion.

Question: And what is your opinion?

Answer: My opinion is that it’s very safe
to use this kind of an application on the
mower without any problems.

Question: It’s been said in court [by
Marty] that the wing nut is subject to
vibrating off. Do you agree?

Answer: Well, the vibration on the handle,
yes, but this wing nut will not come off
when you tighten it. . . .

  *   *   *

Question: Mr. Plamper, based on your
knowledge, your experience, your
training, and your testing do you have an
opinion based on a reasonable degree of
engineering certainty as to whether Mr.
Goodwin could have been hit with a wing
nut while operating the lawn mower in the
operator zone [behind the lawn mower]
with the [discharge] chute down?

Answer: That it is impossible, including a
ricochet.

  Plamper, in over 35 pages of direct
testimony, gave numerous examples of why
he was of the opinion that the lawn mower
was safe and how it complied with all
applicable safety standards. Plamper also
testified as to the results of the tests
he had performed on the same model lawn
mower and that his testing confirmed his
opinion that the lawn mower was safe.
However, the district court refused to
allow Plamper to testify as to the
impossibility of a wing nut causing
Goodwin’s eye injury on the grounds that
Plamper was not qualified as a medical
expert to testify on the issue.
Furthermore, the trial judge excluded, as
cumulative, a videotape that MTD wanted
to introduce showing Plamper conducting
some of the tests that he discussed as
well as a videotape of the same model
lawn mower being assembled.

  Based on the evidence adduced at trial,
the jury returned a verdict in favor of
Goodwin, finding that MTD was 65%
responsible for the accident and that
Goodwin was 35% responsible for the
accident. As mentioned previously,
Goodwin was awarded $603,167.96 plus
costs. MTD appeals.

II.   ISSUES

  On appeal, MTD argues that the trail
judge erroneously: 1) denied its motions
for judgment as a matter of law and for
a new trial because, according to MTD,
the evidence Goodwin presented at trial
was insufficient to permit a reasonable
jury to find in his favor; and 2)
excluded expert testimony.

III. DISCUSSION
A. Standard of Review

  While we review the denial of a motion
for judgment as a matter of law de novo,
Emmel v. Coca-Cola Bottling Co. of
Chicago, 95 F.3d 627, 629 (7th Cir.
1996), this court’s inquiry is limited to
"whether the evidence presented, combined
with all reasonable inferences
permissibly drawn therefrom, is
sufficient to support the verdict when
viewed in the light most favorable to the
party against whom the motion is
directed." McNabola v. CTA, 10 F.3d 501,
515 (7th Cir. 1993). "In other words, we
are limited to assessing whether no
rational jury could have found for the
plaintiff." Emmel, 95 F.3d at 630 (citing
EEOC v. G-K-G, Inc., 39 F.3d 740, 745
(7th Cir. 1994)). Although we review the
denial of a motion for judgment as a
matter of law de novo, our review of the
denial of MTD’s motion for a new trial is
under the abuse of discretion standard.
Robinson v. Burlington Northern R.R., 131
F.3d 648, 656 (7th Cir. 1997).

  With respect to MTD’s claim that the
district judge erroneously excluded some
of its proposed expert testimony, it is
well established that a trial judge has
wide discretion in determining both the
competency of an expert witness as well
as the relevancy of the expert’s
testimony on a particular subject.
Consequently, a judge’s decision to limit
an expert’s testimony "will be overturned
on appeal only if manifestly erroneous."
United States v. Lanzotti, 205 F.3d 951,
956 (7th Cir. 2000) (citation omitted).

B.   Sufficiency of the Evidence

  As mentioned above, the plaintiffs’
theory of liability was straightforward.
The plaintiffs claimed that MTD was
negligent in the use of a plastic wing
nut to mount the rope guide because a
plastic wing nut was prone (and a steel
wing nut with nylon threading was less
likely) to become loose due to the
vibrations of a gas-powered lawn mower.
According to the plaintiffs’ theory of
the case, the lawn mower’s plastic wing
nut vibrated loose, was struck and sliced
by the mower blade, and was propelled at
a high rate of speed out the side chute.
After striking the lawn mower blade and
being discharged out the downward-facing
chute, the wing nut bounced off the
ground, struck the siding on the house,
and ricocheted into Goodwin’s left eye.

  In support of their theory, the
plaintiffs offered the testimony of three
people. Initially, Goodwin testified that
he was walking behind the mower while
cutting his grass and that the discharge
chute was facing downward as directed in
the instructions manual. He also stated
that after he had been mowing for
approximately 20 minutes, and was
approximately five feet from his house,
he was struck in the left eye by an
object. Finally, after his surgery,
Goodwin searched the area near the
accident and discovered a damaged plastic
wing nut which was sliced as a result of
its coming into contact with the mower’s
blade. Furthermore, it should be noted
that after the accident and upon
inspection of the lawn mower, it was
discovered that the mower was missing a
wing nut and that the sliced wing nut
Goodwin recovered fit the lawn mower
exactly where the missing plastic wing
nut would have been./3 It is also
important to note that Goodwin was the
only eye-witness to the accident and,
obviously, the jury must have decided to
find his testimony credible concerning
where he was walking when he was struck
in the eye by the wing nut as well as the
position of the discharge chute at the
time of the accident. Any attempt by MTD
to argue that Goodwin’s testimony was
insufficient to establish the
circumstances which lead up to the
accident is meritless because, as we have
long held,

[w]e will not second-guess a jury on
credibility issues. While this court’s
review is confined to the "cold pages" of
an appellate transcript, the jury had an
opportunity to observe the verbal and
non-verbal behavior of the witnesses,
including the subject’s reactions and
responses to the interrogatories, their
facial expressions, attitudes, tone of
voice, eye contact, posture and body
movements . . . . [I]t is not the task of
this appellate court to reconsider the
evidence or assess the credibility of the
witnesses.

Hasham v. California State Bd. of
Equalization, 200 F.3d 1035, 1047 (7th
Cir. 2000) (citing United States v.
Hickok, 77 F.3d 992, 1006 (7th Cir.
1996)).

  Not only did the plaintiffs present
Goodwin’s testimony, but they also
presented the testimony of two experts,
the board-certified ophthalmologist who
performed Goodwin’s surgery as well as an
engineering expert.

  According to Dr. Born,

the broken wing nut [in this case] is a
type of projectile consistent with the
injury to Mr. Goodwin’s cornea. It
satisfies that criteria, being large
enough to cause a significant blow to the
eye and relatively sharp being cut by the
lawn mower to cause the slice and injury
to the eye.

Thus, the jury was informed by the
surgeon that the wing nut in this case
was the type of object that could
haveinflicted Goodwin’s "very unusual"
eye injury.

  Finally, the plaintiffs also introduced
testimony from their expert, Marty.
According to Marty’s testimony, the wing
nut in this case evidenced that a slice
had been inflicted onto it as a result of
its coming into contact with the lawn
mower blade. Marty also testified that in
his opinion the manufacturer’s design of
a lawn mower that used a plastic wing nut
was "defective and unreasonably
dangerous" because "the plastic wing nut
does not have a locking feature and it
can easily unthread if it should loosen."
Furthermore, according to Marty, a
plastic wing nut was more likely to come
loose due to the lawn mower’s vibrations
than a steel wing nut with nylon
threading. Finally, Plamper’s (MTD’s
expert) original report opined that
"Goodwin’s injury was not the result of a
direct hit but rather a ricochet."
Although Plamper attempted to recant his
previously stated opinion during trial
and claim that Goodwin’s injury was the
result of a direct hit rather than a
ricochet, the district court judge aptly
noted that "in light of his obvious
incentive as the mower’s designer to
testify in a way that would avoid
liability, the jury was free to determine
that he had it right the first time."

  After reviewing the record, we are of
the opinion that the jury’s verdict in
favor of Goodwin is sufficiently
supported by the evidence in the record.
Consequently, we agree with the trial
judge’s rulings on MTD’s motions after
the verdict and reject MTD’s argument to
the contrary.

C.   Expert Testimony

  MTD also argues that it is entitled to
a new trial because the judge committed
error in limiting the testimony of its
expert. Specifically, MTD argues that
Plamper should have been allowed to: 1)
introduce videotapes demonstrating what
needs to be done to a lawn mower after it
is purchased to make it operational; 2)
introduce videotape of him performing
various safety tests; and 3) testify as
to how he believed the accident occurred.
  The trial judge summarized his
conclusions concerning MTD’s proposed
expert testimony as follows:

  During Plamper’s testimony at trial the
court sustained objections to his
testimony concerning the nature of
plaintiff’s injury and whether it could
have been caused by the wing nut as
theorized by plaintiff. The objection was
sustained because there was no foundation
that Plamper had any medical expertise
which would enable him to competently
testify on the degree of injury which a
particular object could cause. It was
also sustained because Plamper’s expert
report made no reference to any such
opinion. There was no other evidence
which would support an opinion that the
plaintiff must have been directly in
front of the chute. Accordingly,
Plamper’s proffered testimony on that
issue was not expert testimony but
speculation and argument unsupported by
admissible scientific evidence.
Defendant’s counsel was free to argue
that the accident happened in a different
way, but to give that argument the force
of expert opinion would have been
misleading to the jury and contrary to
the limits and purposes of expert
testimony.

  Plamper testified at great length at
trial about thrown objects testing he
conducted on the mower. The jury was
fully apprised of the results of that
testing and Plamper’s conclusions from
it. A video tape of the testing would
have been entirely cumulative, a
distraction and a waste of time. This is
even more apparent as it concerns the
videotape of the mower being assembled.
The actual mower was present in court for
the jury to examine. The assembly of the
wing nut could readily be demonstrated.
Nothing was to be gained by showing the
video of that process . . . .

  Finally, Plamper was free to testify and
did testify about vibration testing on
the mower. He described the vibration
test, the result that nothing vibrated
from the mower and specifically offered
his opinion based on this test that a
properly tightened nut could not vibrate
from the mower. . . . The video tape of
vibration testing showing that nothing
vibrated from the mower would have added
nothing helpful to the jury, being
cumulative of the testimony and a waste
of time.


  1.   Daubert

  In Bourelle v. Crown Equipment Corp.,
220 F.3d 532, 536 (7th Cir. 2000)
(footnote in original), this court stated
that

[i]n the recent and well-recognized
Daubert v. Merrell Dow Pharmaceuticals
Inc., 509 U.S. 579, 589, 113 S. Ct. 2786,
125 L. Ed.2d 469 (1993), the Supreme
Court held that Fed. R. Evid. 702 imposes
on the trial court the obligation, when
dealing with expert witnesses, to ensure
that scientific testimony is "not only
relevant but reliable."/4 In Kumho, the
Supreme Court clarified its decision in
Daubert and held that "this basic
gatekeeping obligation" applies to all
expert testimony. 526 U.S. at 147. Thus,
the trial judge must determine whether
[an expert’s] opinion was grounded in the
"methods and procedures of science,"
Daubert, 509 U.S. at 590, 113 S. Ct.
2786, and whether such testimony had
sufficient "factual underpinnings,"
Walker v. Soo Line R.R. Co., 208 F.3d
581, 586 (7th Cir. 2000).

Furthermore, as the Supreme Court
elaborated:

The objective of [Daubert’s gatekeeping]
requirement is to ensure the reliability
and relevancy of expert testimony. It is
to make certain that an expert, whether
basing testimony upon professional
studies or personal experience, employs
in the courtroom the same level of
intellectual rigor that characterizes the
practice of an expert in the relevant
field.

Kumho, 526 U.S. at 152. Also, "[i]t is
axiomatic that proffered expert testimony
must be ’derived by the scientific method
[.]’" Clark, 192 F.3d at 756 (citations
and internal quotations omitted).


  2. Plamper’s opinion regarding the
cause of the accident

  MTD attempted to introduce Plamper’s
opinion regarding the cause of the
accident. Specifically, MTD wanted to
introduce Plamper’s opinion: 1) that a
wing nut could not have caused the type
of eye injury Goodwin sustained; 2) that,
contrary to the plaintiff’s testimony,
Goodwin was not in the operator’s zone
(behind the lawn mower) when he was
injured; and 3) that the discharge chute,
which Goodwin claimed was facing down,
must have been facing up for the
plaintiff to have been injured in the
manner he described.

  With respect to Plamper’s testimony
concerning his opinion as to the
impossibility of a wing nut causing the
type of eye injury Goodwin sustained, we
agree with the experienced trial judge’s
ruling that Plamper, an engineer, was not
qualified to give an expert opinion
concerning the nature, scope, or cause of
an eye injury that resulted from contact
with a wing nut which was discharged at a
high rate of speed from a lawn mower.
Plamper has neither a medical degree nor
any medical training, and an individual
with a degree in mechanical engineering
is not qualified to give expert testimony
on medical questions, including the cause
of an eye injury.

  MTD also wanted to introduce Plamper’s
"expert opinion" that he did not believe
Goodwin when he stated he was in the
operator’s zone behind the lawn mower
with the discharge chute facing down when
he was injured. We agree with the trial
judge who properly concluded that,
although defense counsel could argue to
the jury that the accident occurred in a
different way, MTD was not entitled to
have an expert give an opinion as to the
veracity of Goodwin’s testimony
concerning the circumstances surrounding
the accident when that opinion was merely
based on speculation and not on
admissible scientific evidence. Any argu
ment by MTD that Plamper was entitled to
give expert opinion as to whether he
believed Goodwin’s testimony that he was
in the operator’s zone behind the mower
with the discharge chute facing down is
without merit because an expert cannot
testify as to credibility issues. Rather,
credibility questions are within the
province of the trier of fact, in this
case a jury. Hasham, 200 F.3d at 1047
("We will not second-guess a jury on
credibility issues.").


  3.   The videos

  MTD also argues that it is entitled to
a new trial because the trial judge
erroneously excluded, as cumulative,
videotapes it wanted to show to the jury.
Specifically, MTD wanted to show a video:
1) of a lawn mower being assembled; 2) of
Plamper running over various objects with
a lawn mower and how the objects were
discharged from the mower; and 3) of
vibration testing.

  However, the decision that the
videotapes would be cumulative "rests
within the sound discretion of the
district court." United States v.
Gardner, 211 F.3d 1049, 1055 (7th Cir.
2000) (citing United States v. Kizeart,
102 F.3d 320, 325 (7th Cir. 1996)). And,
as we stated in Gardner,

[e]vidence is ’cumulative’ when it adds
very little to the probative force of the
other evidence in the case, so that if it
were admitted its contribution to the
determination of truth would be
outweighed by its contribution to the
length of the trial, with all the
potential for confusion, as well as
prejudice to other litigants, who must
wait longer for their trial, that a long
trial creates.

Id. at 1055 (quoting United States v.
Williams, 81 F.3d 1434, 1443 (7th Cir.
1996)).

  With respect to the video of the lawn
mower being assembled, we agree with the
trial judge that the use of such
demonstrative evidence from a videotape
would have been cumulative because the
lawn mower was in plain view of the jury
and, as the district judge stated, "the
assembly of the wing nut [in question]
could be readily demonstrated."
Furthermore, Plamper essentially
testified as to what was necessary in
order to make the lawn mower operational
after purchase, including the tightening
of the wing nuts. We are convinced that
the video demonstrating the assembly of
the lawn mower would be cumulative and,
thus, a waste of the court’s and the
jury’s precious time. The trial judge’s
decision to exclude the videotape was
proper.

  MTD also wanted to introduce a videotape
of Plamper performing a "thrown object
test."/5 Essentially, the videotape
demonstrates Plamper steering the lawn
mower (with the motor operating) over a
variety of objects and how those objects
are discharged out the lawn mower.
However, Plamper was allowed to testify
at great length as to the "thrown object"
tests he performed and the results that
were reached. Furthermore, the jury was
fully apprised of Plamper’s conclusions
as a result of the thrown object testing.
As this and other courts have held, a
trial judge’s decision to exclude a
videotape of essentially the same subject
matter material that the expert had just
testified to is not an abuse of
discretion and does not warrant a new
trial. See, e.g., Finchum v. Ford Motor
Co., 57 F.3d 526, 530-31 (7th Cir. 1995);
United States v. Falcon, 766 F.2d 1469,
1477-78 (10th Cir. 1985); United States
v. McCollum, 732 F.2d 1419, 1423 (9th
Cir. 1984). Consequently, the trial judge
properly excluded the videotape as
cumulative./6
  The exact same analysis used above can
be applied to the videotape regarding the
vibration testing performed by Plamper.
Despite MTD’s arguments, a review of the
transcripts reveals that Plamper
testified, at length, concerning his
opinion that the plastic wing nut would
not come loose due to vibrations if
properly tightened. Allowing MTD to
introduce a videotape of a lawn mower
operating and the wing nut not vibrating
loose is not only cumulative of Plamper’s
testimony but also a waste of the jury’s
and the court’s time. Cases like Finchum,
Falcon, and McCollum mandate that the
judge’s decision to exclude the videotape
of the vibration testing be upheld.

  We are convinced that the plaintiffs
offered evidence sufficient to support
the jury’s verdict. Furthermore, we are
of the opinion that the trial judge did
not erroneously exclude any of the
videotapes MTD wanted admitted nor did
the judge improperly limit the scope of
Plamper’s testimony.

  The decision of the district court is

AFFIRMED.




/1 Although Goodwin was wearing glasses at trial, he
testified that he was not wearing any glasses at
the time of his accident.

/2 MTD and the Goodwins agreed to have the trial
judge read a short narrative as to each of the
expert’s qualifications. Consequently, there was
no direct testimony as to the expert’s qualifica-
tions.

/3 Marty opined that the damage to the wing nut was
"very consistent with contact with a sharp object
such as a lawn mower blade" and that the "cut
would have been made once the wing nut detached
from the mower and was no longer protected by the
handle that it was at one time likely secured
to." In fact even MTD’s expert admitted that the
damage to the plastic wing nut was consistent
with having been hit by the mower blade.

/4 Daubert set forth the familiar nonexhaustive list
of four factors that are helpful in gauging the
reliability of expert testimony: 1) whether the
theory is scientific knowledge that will assist
the trier of fact and can be tested; 2) whether
the theory has been subjected to peer review or
publication; 3) the known or potential rate of
error and the existence of standards controlling
the technique’s operation; and 4) the extent to
which the methodology or technique employed by
the expert is generally accepted in the scientif-
ic community. See Daubert, 509 U.S. at 593-94,
113 S. Ct. 2786. However,

[b]ecause the Daubert Court "emphasized that it
did ’not presume to set out a definitive check-
list or test,’ and that the district judge’s
inquiry should be ’flexible,’" United States v.
Vitek Supply Corp., 144 F.3d 476, 485 (7th Cir.
1998) (citation omitted), there is no requirement
that the district judgeconsider each one of these
"guideposts" when making an admissibility ruling
under Fed. R. Evid. 702.

Ancho, 157 F.3d at 515.

/5 The thrown object test is merely a variety of
objects being run over by a lawn mower and
discharged out the side chute.

/6 We also believe that the proposed thrown object
test evidence was irrelevant to the plaintiffs’
case. The tests were performed with a different
lawn mower, at a different location, in different
mowing conditions, and ricocheted off a different
house with different siding and foundation.
However, given that the trial judge properly
excluded the videotapes as cumulative, we need
not address this issue.
