Feuerstein et al v. Home Depot U.S.A. Incorporated et al

Filing 115

ORDER AND OPINION granting 102 Motion for Leave to File Certain Exhibits in Electronic Format. Plaintiffs' Exhibits 4-16 and 6 may be submitted to the Clerk of Court in electronic format and shall thereupon become part of the record in this case. Plaintiffs shall promptly present these items to the Clerk of Court. Signed by Judge John W Sedwick on 3/21/14.(JWS)

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

Burt Feuerstein and
Janet Shalwitz,
Plaintiffs,
vs.
The Home Depot, U.S.A., Inc., et al.,
Defendants.

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2:12-cv-1062 JWS
ORDER AND OPINION
[Re: Motion at docket 102]

I. MOTION PRESENTED
At docket 102 plaintiffs Burt Furestein and Janet Shalwitz (“Plaintiffs”) seek leave
to file certain exhibits in electronic format. Defendants The Home Depot, U.S.A., Inc.
(“HD”) and Tricam Industries, Inc. (“TI”) (collectively “Defendants”) respond at
docket 103. Defendant Trex Company Incorporated (“Trex”) did not respond to the
motion. Plaintiffs’ reply is at docket 104. Oral argument was not requested and would
not be helpful to the court.
II. BACKGROUND
Plaintiffs’ amended complaint alleges that Burt Fuerstein was injured on May 8,
2011, when a ladder slipped from beneath him. The ladder was manufactured by TI

and sold by HD. Plaintiffs allege that the ladder slipped while set up on decking
manufactured by Trex which was also sold by HD. The gravamen of Plaintiffs’ several
claims is that the ladder slipped because of defective design of the ladder’s feet,
defective warnings or instructions, and defective design of the Trex decking’s surface.
III. DISCUSSION
The motion at docket 102 seeks leave to file three items in electronic format:
Exhibit 4-16; a video recording by Plaintiffs’ expert Herbert Weller; Exhibit 4-17, a
second video recording by Weller; and Exhibit 6, a three-part animation based on the
testimony and reports from Plaintiffs’ experts. Defendants’ response at docket 103
opposes the filing of Exhibit 6, but does not address Exhibits 4-16 and 4-17. This is not
to say that Defendants concede the admissibility of testimony or video from Plaintiffs
designated experts, Weller and Jay Preston. Defendants have filed separate motions
in limine directed at Messrs. Weller and Preston.1 The court’s analysis of the motion at
docket 102 has been further narrowed by Plaintiffs’ withdrawal of their request to file
Exhibit 4-17 in electronic format.2 Electronic copies of Exhibits 4-16 and 6 have been
provided to the court for its review.
An examination of Exhibit 6 shows that it consists of very simple animated
displays of events which Weller opines caused the ladder to slide and the fall which
Plaintiffs’ claim was caused by the slippage. The animations are exceedingly simple
and do not go beyond what Weller contends happened. The court agrees with

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Dockets 84 and 86.

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Doc. 110.

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Plaintiffs’ argument that the animations in Exhibit 6 are nothing more than
demonstrative evidence intended to illustrate what Weller says happened. The court
further agrees that the person who prepared the animation, Scott J. Taylor of Tetra
Animations, is not being used as an expert witness by Plaintiffs. His function is for
present purposes no different than that of a photographer, videographer or person
preparing a chart or summary of information in evidence. Assuming without deciding
that Weller’s testimony will be admitted, Exhibit 6 could then be used, but it would have
no independent probative value. It would be Weller’s testimony and other relevant
evidence which would be considered by the finder of fact. Furthermore, as to the
animations themselves, the jury may be instructed that they are not themselves
evidence and that if they do not correctly reflect the facts surrounding the placement
and use of the ladder as those facts are found by the, jury then the animations are to be
ignored.3
IV. CONCLUSION
For the reasons above the motion at docket 102 is GRANTED as follows:
Plaintiffs’ Exhibits 4-16 and 6 may be submitted to the Clerk of Court in electronic
format and shall thereupon become part of the record in this case. Plaintiffs shall
promptly present these items to the Clerk of Court.
DATED this 21st day of March 2014.
/S/
JOHN W. SEDWICK
SENIOR UNITED STATES DISTRICT JUDGE

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Cf., Ninth Circuit Manual of Model Jury Instructions, Civil, Instruction No. 2-12.
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