1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

HELEN RAPINE : CIVIL ACTION

 :

 :

v. :

 :

 :

HARRAH’S ATLANTIC CITY : NO. 2:04-CV-00590-LDD

MEMORANDUM OPINION

J. Davis March 21, 2006

Presently before the Court is plaintiff’s amended motion for a new trial (Doc. No. 66)

and defendant’s response thereto (Doc. No. 68). For the following reasons, this Court denies

plaintiff’s amended motion for a new trial (Doc. No. 66).

I. Factual and Procedural History

On December 7, 2005, this Court conducted a two-day trial on plaintiff Helen Rapine’s

(“plaintiff”) claim of negligence against defendant Harrah’s Atlantic City (“defendant”). 

Plaintiff’s theory of liability was that defendant failed to protect plaintiff, a business invitee, from

a dangerous condition about which defendant knew or should have known. 

At trial, plaintiff testified that she suffered physical injuries when she fell off of a bench

seat (the “bench”) in the elevator lobby of defendant’s hotel. (See December 7, 2005 Transcript

(“Tr.”), at 92-94). Plaintiff’s liability expert, Dr. Widas, testified that the bench was 57 inches in

length, with a 7 and 1⁄2 inch radius slope at its ends. (See December 8, 2005 Tr., at 47-62). Dr.

Widas further testified that the slope of the bench was not visible nor delineated, that it lacked

arm rests, sides, and a back, and that defendant did warn patrons of the bench’s contours. (Id.). 

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Defendant presented one witness, John Witmer, defendant’s former project director and 1

current director for design and construction. (See December 8, 2005 Tr., at 125-142). 

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Dr. Widas concluded that the location, structure, and presentation of the bench not only posed an

unmitigated danger to patrons, but also was the reason that plaintiff fell and suffered injuries. 

(Id., at 55, 60-61).

The presentation of evidence concluded on December 8, 2005. Less than two hours 1

later, the jury returned a verdict for defendant, finding that defendant was not negligent in

maintaining the bench on its premises. (See December 8, 2005 Tr., at 216; Verdict Sheet, Doc.

No. 62). On December 16, 2005, plaintiff filed a motion for a new trial (Doc. No. 63), which

was later amended on January 19, 2006. (Doc. No. 66). Defendant filed a response on February

9, 2006. (Doc. No. 68). 

II. Discussion

Pursuant to Rule 59 of the Federal Rules of Civil Procedure, a court may grant a motion

for a new trial “for any of the reasons for which new trials have heretofore been granted in

actions at law in the courts of the United States.” Fed. R. Civ. P. 59(a). A court has the clear

authority to order a new trial where, inter alia, the verdict was against the weight of the evidence,

the size of the verdict was too large or too small, new evidence has been discovered, the judge,

jury, or an attorney engaged in misconduct, or a prejudicial error of law was made. See 11

Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2805, at 38 (1973). No

error is justification for granting a new trial unless the error is more than harmless, “unless

refusal to take such action appears to the court inconsistent with substantial justice.” Fed. R. Civ.

P. 61. 

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Plaintiff also suggests that defendant’s motion was untimely. However, both parties 2

inappropriately raised issues forming the basis for motions in limine immediately before jury

selection, in violation of the Court’s November 3, 2005 Order and the Court’s written protocol. 

(See December 7, 2005 Tr., at 44). The Court chose to rule on both parties’ motions, rather than

denying them in their entirety. 

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Plaintiff presents five justifications for granting a new trial. First, plaintiff argues that the

Court erred by precluding plaintiff from introducing evidence that the bench was dangerous to all

senior citizens and that defendant solicited senior citizens to its premises. (See Pl. Am. Br., at 5-

7). Second, plaintiff argues that the Court erred by submitting question number #1 of the verdict

sheet. (Id., at 8-9). Third, plaintiff argues that the Court erred by permitting the jury to inspect

the bench without supervision and that this inspection led to jury misconduct in the form of

unsanctioned experimentations. (Id., at 9-11). Fourth, plaintiff contends that the Court, in

response to a written jury question, erroneously recited its jury instruction on the duty owed to

business invitees. (Id., at 11). Fifth, plaintiff claims that the verdict was against the great weight

of the evidence. (Id., at 11-14).

A. Evidence Concerning Senior Citizens

Plaintiff contends that this Court erred by precluding plaintiff from introducing evidence

that defendant would solicit and invite senior citizens to its premises and that the bench at issue

is hazardous to senior citizens, including plaintiff. (See Pl. Br., at 5).

This Court rejects plaintiff’s argument. First, plaintiff fails to provide any citations to 2

the trial transcript to support her conclusion that the Court granted a motion in limine precluding

plaintiff from introducing evidence that defendant solicits senior citizens to its premises and that

the bench was hazardous to senior citizens. See Loc. R. Civ. P. 7.1(c) (requiring party

submitting brief to provide “concise statement of the legal contentions and authorities relied

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The Court notes that plaintiff failed to technically comply with Rule 7.1(e) of the Local 3

Rules of Civil Procedure, which requires a party either to order a transcript within fourteen days

after filing a post-trial motion or to file a verified motion showing good cause to be excused from

this requirement. See Loc. R. Civ. P. 7.1(e). Indeed, plaintiff did not order a copy of the

transcript until January 9, 2006, twenty-four days after the date of the filing of the original

motion for a new trial, on December 16, 2005. Id. (court may dismiss motion for lack of

prosecution if party fails to order transcript within 14 days after filing of motion or file

verification). Nonetheless, because plaintiff ultimately ordered the transcript of the jury trial, and

because the Court is now in possession of this transcript, the Court will reach the merits of

plaintiff’s arguments in its amended motion. 

These exhibits were marked as P1 and P2 during trial. 4

It is clear that despite the Court’s ruling, plaintiff’s opening statement informed the jury 5

that they would hear evidence regarding defendant’s failure to provide a safe environment for

“senior citizens” in general, particularly those that defendant allegedly solicits. (See December

7, 2005 Tr., at 66-67). 

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upon in support of the motion”); Disalvio v. Lower Merion School District, 2002 WL 1335140,

at *1 (E.D. Pa. June 17, 2002) (finding that Rule 59 motion challenging preclusion of evidence

must be factually and legally specific, rather than filled with general conclusions). Second, the 3

Court’s independent review of the transcript fails to disclose such rulings. Instead, the transcript

reveals that defendant specifically objected to the introduction of two exhibits, solicitations to 4

plaintiff to visit defendant’s casino, on the ground of relevance; and that the Court ultimately

permitted the introduction of these exhibits into evidence for the purpose of showing plaintiff’s

status as a business invitee, but not for the purpose of supporting a broader theory of liability

suggesting that defendant’s premises are unsafe for all senior citizens. (See December 7, 2005

Tr., at 33-38, 51-52, 87-90; December 8, 2005 Tr., at 123). In other words, the Court’s ruling 5

did not preclude plaintiff from introducing evidence that defendant actively solicited plaintiff to

visit its premises and that the bench was unsafe for this particular plaintiff, as a senior citizen. 

Finally, to the extent that plaintiff argues that it should have been entitled to introduce the two

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Plaintiff’s offer of proof on this issue failed to detail evidence suggesting that defendant 6

employed a marketing strategy targeting all senior citizens, as opposed to just plaintiff. (See

December 6, 2005 Tr., at 32-38). Nor did plaintiff offer proof that the bench was unsafe to senior

citizens as a distinct class. For instance, Dr. Widas’ expert report, plaintiff’s lone liability report,

concluded that the structure and presentation of the bench presented a dangerous condition to

plaintiff and users in general. (See Dr. Widas’ May 11, 2005 Expert Report, at 23-25). Dr.

Widas’ expert report never opined that the bench was unsafe for plaintiff because of her

particular age and physical characteristics; or that the bench was unsafe for all senior citizens in

particular. (Id.).

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exhibits for the purpose of presenting a legal theory that defendant’s premises are unsafe for all

senior citizens, the Court finds no error in its previous ruling, again concluding that such a broad

and generalized theory is irrelevant to the particular facts of the case, unduly prejudicial to

defendant, and unsupported by plaintiff’s evidentiary proofs. See Fed. R. Evid. 401 (court must

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exclude irrelevant evidence); Fed. R. Evid. 403 (relevant evidence may be excluded if probative

value substantially outweighed by unfair prejudice or jury confusion). 

B. Verdict Sheet

Plaintiff argues that question #1 of the verdict sheet deviated from the verdict sheets

submitted by the parties and was legally erroneous, misleading, confusing, and ambiguous. (See

Pl. Am. Br., at 8-9).

This Court finds that plaintiff has failed to demonstrate prejudicial error on this issue. 

For instance, plaintiff fails to identify the language in question #1 of the verdict sheet that was

legally erroneous, misleading, confusing, or ambiguous. Nor does plaintiff identify what

language should have been included. Furthermore, it is clear that question #1 (“Has the Plaintiff

proven, by a fair preponderance of the evidence, that the Defendant was negligent?”) differed in

no material way from the parties’ proposed question (“Was Harah’s negligent?”). (See Jury

Verdict Sheet, Doc. No. 62; Pl. Am. Br., at 8). More importantly, plaintiff not only failed to

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lodge an objection to question #1 when it was verbally proposed to the jury as part of the jury

charge, but also to suggest that question #1 constitutes plain or fundamental error. (See

December 8, 2005 Tr., at 190); see Fed. R. Civ. P. 51(d) (party may raise error concerning jury

instruction only if party makes timely objection on record to instruction (or failure to give

instruction) or if jury instruction constitutes plain error affecting substantial rights of parties);

Neely v. Club Med Mgmt. Serv., Inc., 63 F.3d 166, 200 (3d Cir. 1995) (“[W]here a defendant

fails to object to the form and language of special verdict forms or to the jury charges, before

closing arguments or at the close of charging before the jury retires to deliberations, and the form

has been submitted to counsel, objections are waived.”); Franklin Prescriptions Inc. v. New York

Times Co., 2004 WL 1770296, at *6 (E.D. Pa. 2004) (noting that “Rule 51 applies to verdict

sheets as well as jury instructions”). 

C. Unsupervised Examination of Bench

Plaintiff contends that the Court committed prejudicial error by permitting the jury to

inspect the bench without supervision. (See Pl. Am. Br., at 9-11). Specifically, plaintiff argues

that this inspection permitted the jury to perform tests and experiments not performed during

trial, thereby introducing new evidence into the jury deliberations and prejudicing plaintiff. (Id.).

The decision to permit an exhibit admitted into evidence to reach the jury room is left to

the sound discretion of the trial court, absent prejudice to either party. See, e.g., Skaggs v.

Hartford Fin. Group, Inc., 2001 WL 1665334, at *13 (E.D. Pa. Sept. 8, 2001); Young v. Lukens

Steel Co., 881 F.Supp. 962, 975 (E.D. Pa. 1994). Once an exhibit properly reaches the jury

room, the jury may critically examine the exhibit with greater rigor than examinations made

during trial. See, e.g., Bankghart v. Origoverken, 49 F.3d 1302, 1307 (8th Cir. 1995) (permitting

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Plaintiff does not argue that the bench was not an “exhibit” in evidence or that it was 7

inappropriate for the court to permit the jury to observe or view the exhibit during the

deliberation process. (See Pl. Am. Br., at 10). Instead, plaintiff argues that it was prejudicial

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jury to subject allegedly defective stove, an exhibit in product liability action, to greater scrutiny

in jury room by conducting experiment performed at trial). The jury may also duplicate

experiments made during the trial. See, e.g., Konkel v. Bob Evans Farms Inc., 165 F.3d 275, 282

(4th Cir. 1999) (“jury experiments that are merely more critical examinations of exhibits than the

examinations made during the trial are not objectionable”). However, experiments that put the

jury in possession of evidence not offered at trial constitute jury misconduct requiring a new trial,

unless no prejudice results. Id.; McCormick on Evidence § 217 (5th ed. 2003) (noting that jury

experiments that are “reruns of in-court experiments” or that constitute closer scrutiny of exhibit

are permissible, but, “jury experiments utilizing techniques or equipment substantially different

from any employed in court tend to be held error”). 

This Court finds that it appropriately permitted the jury, upon request, to examine the

bench for a brief period of time in the courtroom and that no evidence of jury misconduct exists. 

For instance, as plaintiff concedes, the bench was an exhibit admitted into evidence and the jury

requested to examine the exhibit. (See December 8, 2005 Tr., at 198, 201-203); see Gaskins v.

Tarpley, 456 F.2d 1149, 1152 (3d Cir. 1973) (finding no reversible error when relevant exhibits

are admitted into evidence and go out to jury during its deliberation); N. J. Ct. R. 1:8-8

(permitting jury to take exhibits introduced into evidence at trial into jury room); 75B Am. Jur.

Trial § 1668 (2005) (“A court may in its discretion permit the jury to take to the jury room

exhibits in the case which are not writings . . . . The rule is otherwise as to articles not admitted

in, or those offered in but excluded from, evidence.”). The Court also provided a limiting 7

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error to permit the jury to examine the exhibit during jury deliberations without supervision. 

(Id.). 

Pursuant to Rule 606(b) of the Federal Rules of Evidence, jurors may testify about 8

whether “extraneous prejudicial information was improperly brought to the jury’s attention or

whether any outside influence was improperly brought to bear on any error.” Fed. R. Evid.

606(b).

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instruction, expressly instructing the Court’s criminal deputy to tell the jury members that they

were entitled to inspect the bench, but were not entitled to conduct any “experimentation” or to

“reenact” the factual predicate of the accident. (See December 8, 2005 Tr., at 215, 218); see

Fiorino v. Sears Roebuck and Co., Inc., 707 A.2d 1053, 1058-1059 (N.J. Super. Ct. App. Div.

1998) (finding under New Jersey law that trial judge can, with proper instructions, permit

allegedly defective leaf shredder and blower, along with screwdriver, into jury room so that jury

may reenact experiment of testifying witness during jury deliberations); Muchell v. V & V, Inc.,

622 A.2d 1365, 1367 (N.J. Super. Ct. 1992) (jury’s conducting of experiment on overhead aisle

directory exemplar, consistent with legal proofs adduced at trial, during jury deliberation process

in personal injury action did not constitute receipt of extraneous evidence triggering new trial);

Annotation, Propriety of Juror’s Tests or Experiments in Jury Room, 31 ALR 4th 566, at § 2(a)

(1984) (“if the acts complained of as tests or experiments amounted merely to an examination

and evaluation of such evidence, the courts have generally held that no new evidence was

received and no impropriety resulted”). More importantly, plaintiff introduces no evidence, such

as affidavits from the jurors, that the jury experimented with the bench in an appropriate manner 8

and that this experimentation, to the extent it occurred, prejudiced plaintiff in a harmful way. 

See, e.g., Banghart, 49 F.3d at 1306 (considering paralegal’s affidavit detailing post-verdict

discussions with jurors in determining whether jury performed improper experimentation during

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deliberation); Simon v. Kuhlman, 549 F.Supp. 1202, 1207 (S.D.N.Y. 1982) (denying motion for

new trial because no showing that habeas petitioner was prejudiced by jury’s conducting of

experiment during deliberations to determine possibility of identifying defendant’s facial features

through stocking mask, particularly because experiment took place in presence of all jurors). 

Finally, the Court finds no error in its decision not to place a supervisor in the courtroom during

the inspection process, as the presence of a court-affiliated supervisor carried the potential to

influence the jury in an improper manner and to disrupt the privacy, secrecy, and confidentiality

of the jury deliberation process. See United States v. Olano, 507 U.S. 725, 737 (U.S. 1993)

(acknowledging “cardinal principal that the deliberations of the jury shall remain private and

secret”) (internal citations omitted); United States v. Doherty, 675 F. Supp. 719, 722 (D. Mass.

1987) (“It is beyond peradventure that the actual deliberations of a jury are private and

confidential and not subject to public access”); State v. Jenkins, 861 A.2d 827, 841 (N.J. 2004)

(“We cannot overemphasize the importance of maintaining the secrecy of jury deliberations for

the purpose of encouraging free and vigorous discourse in the jury room.”). 

D. Recitation of Jury Instruction Pertaining to Business Invitees

Plaintiff argues that the Court’s oral recitation of the portion of the jury instruction

pertaining to business invitees, in response to a written jury question, was prejudicial and legally

erroneous. (See Pl. Br., at 11). 

This Court rejects plaintiff’s argument. Initially, the Court notes that it never “re-read”

any portion of the written jury charge in open court following the commencement of jury

deliberations; instead, upon the jury’s request, the Court submitted to the jury the entirety of the

documentation forming the basis for the Court’s oral jury instruction, which included a section

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The Court submitted to the jury both the Court’s original written charge and plaintiff’s 9

supplemental written charge pertaining to the duty of business owners to business invitees. 

Plaintiff’s supplemental written charge formed part of the oral jury instruction; it was read to the

jury after the Court read its original written charge. (See December 8, 2005 Tr., at 189). 

10

detailing the duty of business owners to business invitees. Moreover, plaintiff fails to identify 9

how the language of the written charge submitted to the jury differed from the oral jury

instruction, the adequacy of which plaintiff does not challenge. (See December 8, 2005 Tr., at

179-180, 189). Nor does plaintiff provide any case law in support of her position. In fact,

plaintiff fails to provide any legal or factual analysis into the erroneousness of the written

instruction pertaining to the law of business invitees, and, instead, relies upon bald, unsupported

conclusions that fail both to meet plaintiff’s burden of proof and to comply with Local Rule of

Civil Procedure 7.1(c). See Local R. Civ. P. 7.1(c) (requiring moving party to submit a brief that

contains factual and legal analysis); Moore v. Vangelo, 2004 WL 292482, at *6 (E.D. Pa. Feb.

12, 2004) (denying motion for failure to comply with Rule 7.1(c)’s requirement that moving

party identify factual or legal basis for contentions); Purcell v. Universal Bank, N.A., 2003 U.S.

Dist. LEXIS 547, at *7-8 (E.D. Pa. Jan. 3, 2003) (denying motion because moving party’s brief is

“purely conclusory” and “wholly inadequate” in violation of Rule 7.1(c)). Finally, the Court

notes that plaintiff has failed to demonstrate that the allegedly erroneous written charge

submitted to the jury was harmful or prejudicial to plaintiff. See Evans v. Fed. Reserve Bank of

Philadelphia, 2005 WL 774947, at *4 (E.D. Pa. Apr. 4, 2005) (noting that “error in jury

instructions warrants a new trial only if the court is persuaded, based upon the record as a whole,

that the error was prejudicial; if the charging error would not have changed the trial result, a new

trial cannot be granted”) (internal citations omitted). 

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E. Verdict

A court should order a new trial when the verdict is contrary to the “great weight of the

evidence.” Roebuck v. Drexel Univ., 852 F.2d 715, 736 (3d Cir.1988). A verdict is against the

great weight of the evidence “when the record shows that the jury’s verdict resulted in a

miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks our

conscience.” Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991). In making

this determination, a court is permitted to consider the credibility of witnesses and to weigh the

evidence. See, e.g., Hayes v. Cha, 338 F. Supp. 2d 470, 498 (D.N.J. 2004); Blakey v. Cont’l

Airlines Inc., 992 F. Supp. 731, 734 (D.N.J. 1998). However, in performing this analysis, a trial

court may not usurp the prime function of the jury, and thereby denigrate the jury system, by

substituting its own judgment for that of the jury simply because the court might have reached a

different conclusion. See, e.g., Moyer v. Southeastern Pa. Transp. Auth., 1991 WL 111092, at *2

(E.D. Pa. June 17, 1991); Grace v. Mauser-Werke Gmbh, 700 F. Supp. 1383, 1387 (E.D. Pa.

1988). 

This Court finds that the jury’s verdict in favor of defendant was not against the great

weight of the evidence; nor did it result in a miscarriage of justice of shock the conscience. 

Specifically, the Court finds that a reasonable jury, upon weighing the testimony of plaintiff,

plaintiff’s expert, and defendant’s project director, and upon inspecting the bench at issue, clearly

could have concluded that the bench did not present a dangerous condition to business invitees,

such as plaintiff, and that defendant was not negligent in using and maintaining this bench in its

elevator lobby. See, e.g., Williamson, 926 F.2d at 1352 (“Where the subject matter of the

litigation is simple and within a layman’s understanding, the district court is given less freedom

Case 2:04-cv-00590-LDD Document 73 Filed 03/21/06 Page 11 of 13
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to scrutinize the jury’s verdict than in a case that deals with complex factual determinations”). 

Although plaintiff argues that the testimony of Dr. Widas, plaintiff’s lone liability expert,

highlights the fundamental unfairness of the jury’s verdict and the necessity of granting a new

trial, the jury was free to reject this testimony in reaching its conclusions. Id. at 1353 (reversing

district court decision granting Rule 59 motion for new trial because district court substituted its

credibility determinations for those of jury); Consumers Power Co. v. Curtiss-Wright Corp., 780

F.2d 1093, 1097 (3d Cir. 1986) (“dispute over credibility will not justify a new trial”). 

Accordingly, because the jury’s verdict is supported by substantial evidence in the record, the

Court denies plaintiff’s motion for a new trial based upon the ostensible erroneousness of this

verdict. 

III. Conclusion

For the preceding reasons, this Court denies plaintiff’s Rule 59 motion for a new trial. 

An appropriate Order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

HELEN RAPINE : CIVIL ACTION

 :

 :

v. :

 :

 :

HARRAH’S ATLANTIC CITY : NO. 2:04-CV-00590-LDD

ORDER

AND NOW, this 21 day of March 2006, upon consideration of plaintiff’s amended

st

motion for a new trial (Doc. No. 66), and defendant’s response thereto (Doc. No. 68), it is hereby

ORDERED that plaintiff’s amended motion (Doc. No. 66) is DENIED. 

BY THE COURT:

/S/LEGROME D. DAVIS

Legrome D. Davis, J.

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