Dilello v. Union Tools, Inc., No. S0149-02 CnC (Norton, J., Sept. 15,
2004)

[The text of this Vermont trial court opinion is unofficial. It has been
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STATE OF VERMONT                                     SUPERIOR COURT
Chittenden County, ss.:                          Docket No.S0149-02 CnC



DILELLO

v.

UNION TOOLS, INC.




                                ENTRY
                           (Motion in Limine)

        Plaintiff seeks to exclude testimony of defendants’ witness, Dennis
Hartke, an employee of defendant Union Tools. Hartke is expected to
testify about experiments he performed on seven wood handles at his
employer’s factory in Columbus, Ohio. Hartke has not been disclosed as an
expert witness and is not allowed to give his opinion about the plaintiff’s
accident or the specific wood in the spading fork.

       Instead, Hartke’s testimony will consist of a videotape of his handle-
breaking experiments, his live testimony about his observations during the
experiments, and possibly the broken handles themselves. Defendants
claim that Hartke’s testimony is only demonstrative evidence that will
ground their expert witness Robert Meyer’s testimony in concrete images
and assist the jury in understanding his opinions about the plaintiff’s
causative theory. However, Meyer has been deposed and did not rely on, or
mention, any experiments by Hartke to support his opinion.

        The admission of demonstrative evidence is discretionary. State v.
Brown, 147 Vt. 324, 328 (1986). Its purpose is to illustrate and clarify the
testimony of witnesses or other evidence. 1 M. Graham, Handbook of
Federal Evidence § 401.2, at 246 (5th ed. 2001). It is not offered as
substantive or real evidence to prove a direct fact at issue. Id. There is no
flat rule about it admissibility, but its admissibility—as well as its
relevancy—is ultimately a function of how well it helps the jury understand
other testimony without causing additional confusion or prejudice. See
Brown, 147 Vt. at 328 (requiring only an articulated basis for trial court’s
decision to admit or deny demonstrative evidence); Graham at § 401.3.

       Here, there is a problem of relevance and a potential for confusion.
Hartke’s experiments deal with normal wood and its terminal breaking
point. This is irrelevant because plaintiff does not allege that his accident
involved the same type of pressure or action. This case is about a
manufacturing defect. Plaintiff is alleging that his spading fork was
“brash” and that this defect, unique to his fork, caused it to fail under
normal or moderate pressure. It would confuse the jury to have evidence of
“non-brash” handle breaks.
        To the extent that Hartke’s evidence might illustrate consumer
expectation for a spading fork, it proves too much. As we have previously
noted, the spading fork involved was purchased 18 days prior to the
incident and was only being used for the second time by plaintiff, who
claims he was using it in a reasonable manner. To show the jury just how
much pressure a normal spading fork will take before it breaks proves
something not at issue, namely that a normal spading fork is hardy and will
take a great deal of perpendicular force. The consumer expectation, here, is
a simpler issue. Should a practically new spading fork fail under moderate
pressure? Hartke’s testimony answers this question in more detailed
manner than necessary. Moreover, it does so in a pseudo-scientific manner
that mimics an experiment, which the jury may take with greater authority
then merited. See Graham, at § 401.10, at 276–77 (“The line between
experiments designed to recreate the incident and those designed solely to
illustrate a scientific principle is often difficult to draw.”). In other words,
Hartke’s evidence is too close to expert testimony and invites a violation of
V.R.C.P. 26(b)(4) by allowing undisclosed expert opinion clothed as lay
opinion. Hartke’s experiments risk becoming substantive evidence and
receiving too much weight from the jury. They form a predicate for more
testimony for Meyer, which was not disclosed before trial. The court feels
that its demonstrative value, to prove an issue that is not really an issue, is
not merited by its potential for confusion.

        As to the final issue of whether Hartke’s broken handles are
admissible as demonstrative evidence solely for illustrative purposes, the
court concludes that they are admissible only to the extent and for the
purpose that they illustrate the disclosed scientific principles and
conclusions of the deposed experts. Excluding Hartke’s experiments and
his testimony about them, the wooden handles may be used by the experts
to illustrate their testimony. State v. Dubois, 150 Vt. 600, 602 (1988)
(“[t]he motion should be used, if used at all, as a rifle and not as a shotgun .
. . .”).

       Plaintiff’s motion in limine regarding Dennis Hartke’s experiments
and testimony regarding these experiments is granted.



       Dated at Burlington, Vermont________________, 2004.



                                           ________________________
                                           Judge
