The district court in addressing this request found it did nothing to prevent the jurors from taking all the exhibits and indicated it gave counsel an opportunity to go through their exhibits prior to their being delivered to the jury to ascertain that all admitted exhibits were in the jury's hands. The court further said when it was called to its attention that two numbered exhibits were missing, plaintiffs' attorney was given an opportunity to get them to the court, and they were given to the jury. After making these findings the district court again overruled the motion for new trial. We agree with plaintiffs that all exhibits should go with the jury to the jury room unless the district court exercises its discretion to order otherwise. The district court not having ordered otherwise, all the exhibits admitted at trial including the eleven missing exhibits should have been sent with the jury when they retired to the jury room to deliberate.
Plaintiffs contend error was preserved by their filing a motion for new trial.
The defendants claim the objection could have been raised earlier, and because plaintiffs have failed to do so, we cannot address the claim on appeal. During the course of deliberations the jury sent the judge three notes to the court. The telephone conference was not reported. After the telephone call plaintiffs' attorney faxed two exhibits to the district court and these exhibits were delivered to the jury. Additionally the district court responded to the jury in writing telling them they had all the exhibits, and there was no summary of the total medical bills admitted through exhibit.