UNPUBLISHED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Affirmed by unpublished per curiam opinion.

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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, FENSTERMAKER, KRIEGER, KAYES & FARRELL, Huntington, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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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 admitted 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 fashion a cure. Inasmuch as Shaffer failed to object to the court's proposed 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 Garrett County, Maryland. A portion of the roof collapsed and pinned

Randall against the roof bolting machine, which had been manufactured 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 portion 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 unredacted, 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 satisfactory. In each instance, both lawyers replied in the affirmative.

After the jury had finally retired to its deliberations, it was discovered 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 inclusion 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 narrow 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 delivered 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.

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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 omitted), 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 circumstances 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 something akin to an official imprimatur, the investigators' opinions contained therein as to the cause of the accident, which had been properly

admitted into evidence, were incalculably more devastating to Shaffer'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. Shaffer'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

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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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