UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SANDRA K. SHAFFER, Surviving
Widow of and Personal
Representative of the Estate of the
Deceased, Randall L. Shaffer;
SANDRA K. SHAFFER, Mother and
Next Friend of Alayna Brooks
Shaffer and Surviving Minor Child
of Randall Shaffer,
Plaintiffs-Appellants,

v.
                                                               No. 94-2546
J. H. FLETCHER & COMPANY,
Defendant & Third Party
Plaintiff-Appellee,

and

JOHN DOE; JOHN DOE,
Defendants,

v.

C & S TOOL COMPANY,
Third Party Defendant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frank A. Kaufman, Senior District Judge.
(CA-93-1506-K)

Argued: January 31, 1996

Decided: April 30, 1996

Before HALL and MURNAGHAN, Circuit Judges, and STAMP,
Chief United States District Judge for the Northern District
of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Bernard R. Corbett, LAW OFFICE OF BERNARD R.
CORBETT, Alexandria, Virginia, for Appellants. George Christopher
Courtot, DUNAWAY & CROSS, Washington, D.C., for Appellee.
ON BRIEF: Matthew F. Hall, DUNAWAY & CROSS, Washington,
D.C., for Appellee. Michael J. Farrell, JENKINS, FENSTER-
MAKER, KRIEGER, KAYES & FARRELL, Huntington, West Vir-
ginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In this diversity action for wrongful death, Sandra K. Shaffer
appeals an order of the district court denying her motion for a new
trial. The court had previously entered judgment on the jury's verdict
for the defendant, J.H. Fletcher & Co.

Mrs. Shaffer's husband was killed in a coal mining accident. Prior
to trial, the Mine Safety and Health Administration investigated the
accident and prepared a report of its findings. At trial, the court admit-
ted a redacted version of the MSHA report into evidence. Shaffer
maintains that a new trial is warranted because the jury may have
inadvertently seen unredacted copies of the report. The district court
became aware of the irregularity during trial, and it attempted to fash-
ion a cure. Inasmuch as Shaffer failed to object to the court's pro-
posed remedy, we are not inclined to now second-guess its efficacy.
We thus affirm the judgment below.

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I.

A.

On April 11, 1990, Randall L. Shaffer was killed while installing
roof bolts at the Mettiki Coal Corporation's underground mine in Gar-
rett County, Maryland. A portion of the roof collapsed and pinned
Randall against the roof bolting machine, which had been manufac-
tured by Fletcher. Randall's widow filed the instant action against
Fletcher on behalf of herself, her daughter, and her husband's estate,
asserting claims of negligence and strict liability under Maryland law.

MSHA investigators concluded that the accident was caused by the
lack of temporary roof supports installed at the prescribed intervals.
Mining cuts made too long and too deep into unsupported areas of
uncertain integrity were listed as contributing factors. The MSHA
report, consisting of approximately eight pages, stated that Randall's
co-workers had noticed no mechanical or operational problems with
the roof bolting machine.

A half-page summary entitled "Violations," immediately following
the investigators' conclusions, noted that Mettiki had been, as a result
of the investigation, formally cited for transgressions of MSHA safety
regulations directly relating to the stated causes of the accident. The
infractions included (1) mining through and into an unsupported area
of a crosscut, (2) allowing the bolting machine's automated temporary
roof support system to be engaged more than five feet from another
support, and (3) exceeding the cutting depth specified by the
approved roof control plan under known adverse roof conditions, in
contravention of, respectively, 30 C.F.R. §§ 75.203(d), 75.209(d), and
75.220.

B.

Prior to trial, the district court ruled that Fletcher could introduce
the MSHA report into evidence, but with the "Violations" section
redacted. The redacted report was labeled "Defendant's Exhibit 2,"
and copies were included in exhibit books prepared by Fletcher's
counsel and issued, by leave of the court, to the individual jurors. At

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the trial's outset, the jury was told to refrain from looking at any por-
tion of the defendant's exhibit book -- or of a similar book containing
copies of Shaffer's exhibits -- until the court instructed it to do so.

At the close of the case, as the lawyers and the courtroom deputy
clerk were gathering the books and larger exhibits for removal to the
jury room, Fletcher's attorney noticed that an abridged, but unredac-
ted, copy of the MSHA report had been included within the redacted
version contained in the juror's books. Upon being notified of the
error, the court brought the jurors back into the courtroom and
instructed the clerk to assist them in removing the unredacted copy,
spontaneously designated "Defendant's Exhibit 2A for Identification,"
from their exhibit books. The court explained that the removal was
necessary to correct a "mechanical" error, and it admonished the
jurors not to read Exhibit 2A as they were removing it. From initial
notification until the actual removal, the court asked counsel no fewer
than seven times whether the specific intermediate step taken was sat-
isfactory. In each instance, both lawyers replied in the affirmative.

After the jury had finally retired to its deliberations, it was discov-
ered that the baby had, in effect, been thrown out with the bath water;
in removing Exhibit 2A, one or more jurors had inadvertently also
discarded the copy of Exhibit 2 which had been designated for inclu-
sion in the books. The court, after again consulting both lawyers,*
called the jury back into the courtroom and instructed it to refer only
to the actual Exhibit 2, which had been taken to the jury room apart
from the exhibit books.

The jury returned a verdict for Fletcher on all claims. Shaffer
moved for a new trial, citing the exhibit snafu. The district court
denied the motion, and Shaffer appeals.
_________________________________________________________________
*At this point, Shaffer's lawyer finally objected, but only on the nar-
row ground that sending the missing copies of Exhibit 2 back to the jury
room would, he believed, unduly emphasize them. Inasmuch as some of
his client's trial exhibits had not been copied for inclusion in the exhibit
books, counsel proposed that copies be made of those exhibits and deliv-
ered to the jury simultaneously with the copies of Exhibit 2. The district
court declined this suggestion, apparently because the time required to
copy Shaffer's exhibits would have delayed further deliberations.

                     4
II.

Shaffer's difficulty on appeal lies in her lawyer's failure to oppose
the district court's efforts to remedy the jurors' potential exposure to
the excluded evidence. Instead, counsel merely lodged an objection
to the court's attempt to ensure that the jury had sufficient access to
evidence that indisputably was properly before it. See note *, supra.

In civil cases, federal appellate courts rarely disturb a judgment to
correct an error that has not been properly preserved by a timely
objection. See Champagne v. United States, 40 F.3d 946, 947 (8th
Cir. 1994) (error must have "almost surely affected the outcome of
the case") (citations omitted); Prymer v. Ogden, 29 F.3d 1208, 1214
(7th Cir.) (plain errors are generally not cognizable in civil cases,
although evidentiary rulings may be susceptible to plain error analysis
where exceptional circumstances exist, substantial rights are affected,
and a miscarriage of justice would otherwise result) (citations omit-
ted), cert. denied, 115 S. Ct. 665 (1994); Dennis v. General Elec.
Corp, 762 F.2d 365, 367 (4th Cir. 1985) ("The failure to object at the
proper time will be overlooked on appeal only if exceptional circum-
stances exist such as when the error is so obvious or so serious that
the public reputation and integrity of the judicial proceeding is
impaired.") (citation omitted).

We assume, as the district court did, that the jury was indeed aware
of the previously redacted "Violations" section of the MSHA report.
Although this information may have imbued the report with some-
thing akin to an official imprimatur, the investigators' opinions con-
tained therein as to the cause of the accident, which had been properly
admitted into evidence, were incalculably more devastating to Shaf-
fer's theory of the case. We are, therefore, altogether confident that
the jury's exposure to the report in its entirety did not "almost surely
affect" the outcome of the proceedings, and that no miscarriage of
justice would result from upholding the jury's verdict. Moreover, no
exceptional circumstances exist that would excuse Shaffer's failure to
object. Indeed, this case presents quite the opposite scenario. Shaf-
fer's lawyer bypassed at least seven opportunities to intervene in the
district court's proposed course of action, either by suggesting
improvements, objecting, or moving for a mistrial; instead, he chose

                     5
to stand silent. Though he has finally found his voice on appeal, that
ship has long since sailed.

The judgment of the district court is affirmed.

AFFIRMED

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