224 F.3d 719 (7th Cir. 2000)
Roxanne Tidemann, Plaintiff-Appellant,v.Nadler Golf Car Sales, Inc., Defendant-Appellee.
No. 99-1794
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 18, 2000
Decided August 17, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 91 C 4053--Charles R. Norgle, Sr., Judge.[Copyrighted Material Omitted]
Before Easterbrook, Kanne, and Diane P. Wood, Circuit  Judges.
Diane P. Wood, Circuit Judge.


1
Roxanne Tidemann  was severely injured when a Club Car golf car  that she was attempting to operate suddenly  lurched forward and crashed into a garage door.  Tidemann sued Nadler Golf Car Sales, Inc., which  had reconditioned the car and sold it to her  employer. Tidemann raised both strict liability  and negligence theories. The district court  dismissed the former as a matter of law; the jury  returned a verdict for Nadler on the latter.  After the trial, the district court awarded  Nadler costs pursuant to Federal Rule of Civil  Procedure 68. Tidemann now appeals. With respect  to everything except the award of costs, which  requires further proceedings on remand, we  affirm.


2
* Club Car Inc. manufactures golf cars that  sometimes wind up in areas of service other than  golf courses. Typically, prior to resale, the  cars are reconditioned by dealers such as Nadler.  In 1989, Nadler sold a used car to a real estate  developer, Homes by Hemphill, which planned to  use the car in performing various service  functions around its developments. Tidemann was  working for Hemphill as a home sales  representative on July 14, 1989, when Nadler  delivered the car to Hemphill. According to the  testimony of one of Nadler's delivery  representatives, the car was left with a Hemphill  employee who claimed to know the safety  information about the car. Even so, the  representative said that he explained how to  operate the car anyway. The car was then left on  a driveway roughly 18 inches in front of a closed  steel garage door.


3
Tidemann was the first Hemphill employee to try  to use the car. When she got in, she had  difficulty starting it. She then looked around  for various instructions and warning labels, but  the only information came from a label on the  steering wheel. That label instructed Tidemann to  make sure that the wheels were pointed in the  right direction (they were) and to read the  owner's manual (which Nadler had not provided).  Tidemann says that she then looked at the shift  mechanism and put it into what she believed to be  reverse (it has three positions--forward,  neutral, and reverse). She then pressed the  accelerator pedal, but nothing happened.


4
Tidemann then decided to try turning the  ignition key. She turned it 90 degrees and tried  again to back out, but still nothing happened.  She then turned the key still another 90 degrees,  but again the car did not respond. At this point,  she concluded that something was awry and that  she should turn the car off. She moved the  transmission lever to what she thought was  neutral, then returned the key to its original  position. Suddenly, the car lurched forward,  crashing through the garage door. The garage door  struck Tidemann in the face, causing extremely  serious injuries.


5
Tidemann and Nadler have quite different  characterizations of how much work Nadler  performed on the car. Tidemann suggests that  Nadler basically rebuilt the car from scratch,  whereas Nadler's account sounds like little more  than a tune-up. At this stage, however, the  characterization is not terribly important. It is  not disputed that Nadler follows a checklist that  has several steps that are relevant here. One is  that Nadler checks the reverse buzzer, which  should have sounded had Tidemann really been in  reverse as she intended. More significantly,  Nadler "tighten[s] all nuts and bolts, all wire  connections, and forward-reverse lever screw."  Additionally, Nadler inspects the ignition and  key switch, a step that requires it to remove  part of the car's plastic dashboard.


6
Although the parties dispute both the cause of  the accident and the various problems with the  golf car at the time it was delivered to  Hemphill, Tidemann points to five basic defects  that she says led to her injuries. They are


7
(1)  A loose key switch mechanism, which  according to Tidemann allowed the key to turn  nearly 180 degrees without completing the circuit  and turning on the car. As a consequence of this,  Tidemann was unable to tell whether the car was  on or off when she was trying to put it in  neutral and get out of it. (The car is electric,  so there is no idle sound or vibration that would  indicate a running engine.) Because of this  spinning, the key housing could turn, make  contact, and activate the car even when the user  was trying to turn the car off.


8
(2)  An altered housing for the key switch that  changed the opening from a "D" shape (that would  prevent key switch spin) to a complete circle  (which allowed the switch to spin).


9
(3)  An improperly reconditioned shift lever  (discussed in more detail below). This problem  made it difficult to tell if the car was in  forward, neutral, or reverse.


10
(4)  No owner's manual came with the car.


11
(5)  Certain warning labels specified by Club Car  service documents and specifications were not  included.


12
Tidemann sued Nadler in federal court, invoking  diversity jurisdiction and arguing that Nadler  was both strictly liable and negligent. Nadler  then brought a third-party complaint against Club  Car, which eventually settled out. Tidemann's  strict liability theory was dismissed as a matter  of law, but her negligence claim went to the  jury. The jury returned a verdict on that part of  the case in which it apportioned 82% of the fault  for the accident to Tidemann and 18% to Nadler.  Under Illinois law, this meant that Tidemann lost  entirely. See 735 ILCS sec. 5/2-1116 (West 1994).  Nadler then moved for costs under Rule 68,  reasoning that since Tidemann had turned down an  offer of $5,000 in 1994 and had ended up with a  less favorable result after trial, it was  entitled to the costs incurred in obtaining  judgment. The district court agreed and awarded  $38,213 in costs. Tidemann now appeals.

II

13
Tidemann argues that the jury's unfavorable view  of her negligence claim was the result of a  collection of adverse trial rulings that, in the  aggregate, denied her a fair trial. The most  important of these asserted errors fall into two  general categories--evidentiary rulings and jury  selection procedures. With only one exception  relating to the interpretation of a stipulation  between the parties, the district court has broad  discretion in both of these areas, and we review  its decisions only for abuse. See United States  v. Hunter, 145 F.3d 946, 951 (7th Cir. 1998)  (evidentiary rulings); United States v. Magana,  118 F.3d 1173, 1206 (7th Cir. 1997) (jury  matters).


14
The most difficult of the evidentiary issues  relates to the testimony of Tidemann's mechanical  engineering expert, Robert Tarosky. Tarosky  testified that when he examined the car, he found  that the set screw that connects the directional  lever to the control shaft was not properly  positioned. This increased the amount of movement  in the directional lever and made it difficult to  tell whether the car was in forward, reverse, or  neutral. The sticky problem was that Tarosky did  not examine the car until 1993, four years after  the accident occurred. Needless to say, this  created foundational concerns because of the  possibility that the set screw had been modified  or damaged between the time of the accident and  the time of Tarosky's examination. Tidemann  countered with a stipulation that read as  follows


15
The Plaintiff and Nadler Golf Car Sales, Inc.  stipulate and agree that the golf car involved in  this case was not used for approximately two  years after the accident. It was then moved to a  new location and put into use. The only  adjustment made before putting it into use was to  tighten the key switch. Otherwise, the golf car  remained in substantially the same condition from  the date of the accident through the end of 1993.


16
Tidemann argues that Nadler stipulated that the  condition of the set screw did not change,  eliminating any foundational problems. The  district court disagreed, reading the stipulation  as covering only the general condition of the  car, not every part, no matter how small. It thus  decided to exclude Tarosky's testimony about the  excessive movement of the shift lever.


17
Since the stipulation amounts to a contract and  no extrinsic evidence of its meaning was  presented by either side, we review the district  court's interpretation of it de novo. Braxton v.  United States, 500 U.S. 344, 350 (1991). On that  basis, we cannot agree with the district court's  reading. While the phrase "the golf car remained  in substantially the same condition" standing  alone could be read to refer only to the car's  general condition, the other language in the  stipulation overcomes such an interpretation. The  stipulation refers to a very specific change (the  tightening of the key switch) and says that the  car was "otherwise" unchanged. This indicates  that Nadler stipulated that there was one small  change and no others.


18
Our disagreement with the district court's  interpretation of the stipulation does not end  matters, however. The court also indicated that  "there [was] a substantial [Fed. R. Evid.] 403  issue clearly here." In its view, the probative  value of testimony concerning the condition of  the set screw after two more years of use was  minimal. With such a weak foundation, the court  was concerned that Tarosky's testimony could  confuse or mislead the jury and thus create a  danger of undue prejudice to Nadler.  Consequently, the court also relied on Rule 403  to exclude Tarosky's statements. This is an  independent ground for the ultimate ruling under  which the evidence was excluded, and unlike the  stipulation, it is one that we review only for  abuse of discretion. United States v. Hunter, 145  F.3d 946, 951 (7th Cir. 1998). While we would  have no reason to relieve Nadler of the  consequences of its stipulation if that were the  only ground cited by the district court, the  abuse of discretion standard of review leaves us  no reason on this record to second-guess the  trial judge with respect to the Rule 403 balance.  In the end, we cannot say that the decision to  exclude Tarosky's testimony was so far out of  bounds as to constitute reversible error.


19
Tidemann's other objections to the trial court's  evidentiary rulings can be dealt with more  quickly. Most of them relate to the testimony of  Christopher Shaxted, Tidemann's supervisor at  Homes by Hemphill. Initially, Tidemann had  planned to call Shaxted both as a fact witness  (because he talked with her shortly after the  accident) and an expert (offering his estimation  of her lost income based on his expertise in the  residential real estate industry). However, it  turned out that Shaxted made statements in a 1992  deposition that severely undermined Tidemann's  case. Consequently, Nadler ended up putting him  on the stand.


20
Tidemann first says that Shaxted's testimony  should have been barred because of a supposedly  improper ex parte contact between Nadler's  counsel and Shaxted. Apparently, Nadler's  attorney contacted Shaxted and served a subpoena  without notifying Tidemann's counsel. Tidemann  maintains that Nadler violated the usual rule  prohibiting ex parte contacts with experts from  the opposing side. See, e.g., Erickson v. Newmar  Corp., 87 F.3d 298, 301-02 (9th Cir. 1996).  However, the two justifications for this rule--  that the expert may have confidential information  that should be protected from the adversary and  that the Federal Rules of Civil Procedure heavily  regulate the use of experts--are not applicable  here. Nadler's contact with Shaxted (which was in  fact just to tell him when to show up) had  nothing to do with his expert role (which related  to Tidemann's lost real estate sales income).  Nadler was interested in him solely as a fact  witness; its contact with him was entirely  innocent; and we therefore see no abuse in the  district court's decision to permit his  testimony.


21
Additionally, Tidemann claims that the district  court improperly allowed the use of Shaxted's  1992 deposition for the purpose of impeaching his  testimony. More specifically, Nadler wanted to  impeach Shaxted's trial testimony (which favored  Tidemann's account of what happened) with his  statement in deposition that Tidemann  "indicate[d] to [him] that the car was in gear  when she was trying to start it." Tidemann now  maintains that the trial court allowed the use of  Shaxted's impressions for impeachment purposes  and that this was contrary to our opinion in  United States v. Allen, 798 F.2d 985 (7th Cir.  1986). Allen, however, addressed an entirely  different issue. Allen held that a federal  agent's impressions of what a witness said were  outside of the scope of the Jencks Act because  the agent's impressions of what a witness said  could not be used to impeach the witness. Allen  might be relevant if Nadler had wanted to use  Shaxted's impressions to impeach Tidemann. But  that was not its game plan. It wanted instead to  use the earlier statements to impeach Shaxted  himself. Tidemann presents no reason why this  would be improper.


22
Finally, Tidemann argues that the district court  should have allowed the deposition testimony of  Chuck Rogers, a Club Car reconditioner who she  proffered to give testimony about the proper  method of reconditioning Club Car key switches.  The district court decided that since the jury  could look at the switch itself and since the  proper way of reconditioning it was "almost a  question of common sense," there was no need to  allow Rogers's deposition. It excluded the  deposition under Rule 403. We confess to some  discomfort about the way the judge phrased this:expert testimony is often necessary precisely  because the layperson's "common sense" will cause  her to overlook something that an expert knows is  important. Nevertheless, because the judge again  relied on Rule 403, and because Tidemann presents  no argument suggesting that the court's decision  was an abuse of discretion (other than the  implication that the court had too rosy a view of  the jurors' mechanical sophistication), we again  defer to the trial judge's assessment of the  evidence.


23
Tidemann also claims that the jury was unfairly  tainted against her. First, she points to the  presence of juror Christie Swenson, who she says  should have been dismissed for cause. Tidemann  was concerned that Swenson (1) would have to  catch a 5:45 A.M. train in order to make it to  court on time and (2) owned a golf car that was  used on her family farm. It goes without saying  that Tidemann's theory that early birds are unfit  to serve as jurors is meritless. Nor do we see  any abuse of discretion in the district court's  willingness to allow Swenson to serve even though  she owned a golf car. The court established  during voir dire that Swenson did not even know  the manufacturer of her car, nor was there any  other reason to believe that she would be any  more biased against Tidemann than car owners in  an automobile products liability case.


24
Next, Tidemann complains that the district court  unfairly granted the defendants (Nadler and Club  Car at the start of the trial) three peremptory  challenges each (for a total of six on the  defense side), while it gave her only three.  Under 28 U.S.C. sec. 1870, multiple defendants  may be "considered as a single party for the  purposes of making challenges, or the court may  allow additional peremptory challenges and permit  them to be exercised separately or jointly." In  other words, the allocation of peremptories in  multiple defendant cases is left to the  discretion of the trial court. Neither side cites  to, nor could we find, a reported appellate  decision that holds that the district court's  allocation of peremptories under sec. 1870 was an  abuse of discretion. That is not to say that it  could never happen, but it does suggest that  Tidemann has a steep hill to climb. She presents  nothing to suggest that her case was somehow  extraordinary or that the allocation of  peremptories was otherwise patently unfair, and  so we find no abuse of discretion here, either.


25
In short, none of the district court's  decisions relating either to the evidence  presented or the composition of the jury  constitutes reversible error. Tidemann lost  before the jury and she has offered no persuasive  reason why we should upset its decision.

III

26
Tidemann also maintains that the district court  erroneously granted Nadler judgment as a matter  of law on her strict liability claim. The parties  make much of whether there was sufficient  evidence of a causal link between whatever  defects existed at the time the car left Nadler's  control and Tidemann's eventual injury. They also  argue about whether under Illinois law a seller  or reconditioner of used goods can ever be liable  under a strict products liability theory. Many  cases suggest that the answer to this question is  no. See, e.g., Peterson v. Lou Bachrodt  Chevrolet, 329 N.E.2d 785, 787 (Ill. 1975); Timm  v. Indian Spring Recreation Ass'n, 543 N.E.2d  538, 541 (Ill. App. Ct. 1989); Abel v. General  Motors Corp., 507 N.E.2d 1369, 1376 (Ill. App.  Ct. 1987). Tidemann argues that these are  distinguishable because of the amount of work  that Nadler performed as well as its relationship  with Club Car, the original manufacturer.  Additionally, the recently published Third  Restatement of Torts suggests that where, as  here, a reseller remanufactures a product and  advertises it as "like new," products liability  doctrines may apply. See Restatement (3d) of  Torts: Products Liability sec. Eight.


27
We need not offer a non-binding guess as to  whether Illinois courts would agree with  Tidemann's distinctions or would follow the Third  Restatement's lead on this issue. Under  applicable Illinois law, "In all actions on  account of bodily injury or death or physical  damage to property, based on negligence, or  product liability based on strict tort liability,  the plaintiff shall be barred from recovering  damages if the trier of fact finds that the  contributory fault on the part of the plaintiff  is more than 50% of the proximate cause of the  injury or damage for which recovery is sought."  735 ILCS sec. 5/2-1116; Freislinger v. Emro  Propane Co., 99 F.3d 1412, 1417 (7th Cir. 1996);  Hobart v. Shin, 705 N.E.2d 907, 910-11 (Ill.  1998). (This section was subsequently amended and  those amendments were then invalidated by the  Supreme Court of Illinois in Best v. Taylor  Machine Works, 689 N.E.2d 1057 (Ill. 1997). Those  developments, however, are of no moment to this  case because the amendment applied only to causes  of action accruing after March 9, 1995. See 735  ILCS sec. 5/2-1116(e) (Supp. 1999).) Section 5/2-  1116 makes clear that it does not matter whether  a plaintiff's case is based on negligence or  "product liability based on strict tort  liability." If the jury concludes that her own  negligence was more than 50% of the cause of her  injuries, then no damages are to be awarded  regardless of the different theories of liability  that a plaintiff might assert. Here, the jury  decided that Tidemann was 82% responsible for  what happened to her. There is no reason to think  that the jury would have changed its opinion of  the role that Tidemann's negligence played in her  accident had it also been instructed in an  alternate theory of Illinois products liability  law, especially since the district court rightly  presented Nadler's sec. 2-1116 affirmative  defense to the jury as an entirely separate  issue. So, even if Tidemann is correct that  Illinois law would allow a strict liability claim  under these circumstances, Nadler proved to the  jury an affirmative defense that would have  overcome this theory.

IV

28
Finally, Tidemann appeals the district court's  decision to award $38,213 in costs to Nadler.  Nadler argues, and the district court agreed,  that when it made an offer to Tidemann to settle  her case for $5,000, it triggered Rule 68, which  provides that "[i]f the judgment finally obtained  by the offeree is not more favorable than the  offer, the offeree must pay the costs incurred  after making the offer." The district court  concluded that since losing (and therefore  getting nothing) is worse than getting $5,000,  Rule 68 applied and Nadler was therefore entitled  to the $38,213 in costs that it incurred  subsequent to its offer. This ruling overlooked  the Supreme Court's opinion in Delta Airlines v.  August, 450 U.S. 346 (1981), where the Court held  that Rule 68 costs are available only to a  plaintiff who obtains judgment in her favor, but  recovers less than the settlement offer. It does  not apply to a case like this one, where the  judgment is for the defendant. Id. at 352. See  also Stomper v. Amalgamated Transit Union, 27  F.3d 316, 319 (7th Cir. 1994) (requiring a  "positive award" to the offeree to trigger Rule  68); Lentomyytni Oy v. Medivac, Inc., 997 F.2d  364, 368 (7th Cir. 1993) (following Delta  Airlines).


29
The question remains whether Nadler has  forfeited the right to obtain its proper costs  because it cited the wrong Federal Rule of Civil  Procedure to the district court. Under Rule  54(d), as the prevailing party, it was entitled  to its costs unless the court otherwise directed.  The proper measure of those costs is set forth in  28 U.S.C. sec. 1920. The amount of costs the  court calculated using Rule 68 bore no necessary  relation to the proper measure of costs allowable  under sec. 1920, but we conclude that Nadler is  entitled to the latter. We therefore vacate the  district court's cost award and remand the issue  of costs for recalculation under the proper  standards.

V

30
For the forgoing reasons, we Affirm the judgment  of the district court with respect to all aspects  of this case except for the award of costs under  Rule 68. That portion of the judgment is Vacated  and Remanded for further proceedings consistent  with this opinion.

