Kevin Schmude v. Tricam Industries

In the

United States Court of Appeals
For the Seventh Circuit

No. 08-2370

K EVIN S CHMUDE,
Plaintiff-Appellee,
v.

T RICAM INDUSTRIES, INC.,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 07 C 457—William C. Griesbach, Judge.

A RGUED JANUARY 7, 2009—D ECIDED F EBRUARY 17, 2009

Before P OSNER, R IPPLE, and R OVNER, Circuit Judges.
P OSNER, Circuit Judge. Before us is the appeal in a
diversity suit for personal injury, and if there were any
substantive issues they would be governed by Illinois
law, but there aren’t any. The plaintiff fell off a ladder at
work, injuring his back severely; he is a manual worker,
and as a result of his injury is no longer employable. The
ladder was defective, and he sued the manufacturer. The
only issue at trial was whether the defect had caused
the accident—one can of course fall off a defective ladder
2 No. 08-2370

and be injured without the fall having been precipitated
by the defect. The jury awarded the plaintiff $677,000 in
damages, and the defendant does not question the size
of the award. Its objections to the judgment, discussed and
rejected by the district judge in a lucid and thorough
opinion reported at 550 F. Supp. 2d 846 (E.D. Wis. 2008),
are procedural.
The plaintiff was doing construction work in a building.
He needed to check a panel in the ceiling for a possible
short circuit. He erected an eight-foot fiberglass ladder
that had been manufactured by the defendant. The
plaintiff testified that he was standing halfway up the
ladder, reaching into a space in the ceiling with his
hands, when he fell off the ladder, landing on his back.
The gravity of his injury may have been due to the fact
that he weighs 350 pounds.
The ladder collapsed with him, and one of the rivets
that fastened the rear legs of the ladder to the platform at
the top of the ladder was found on the floor; and the
leg had separated from the ladder. The plaintiff’s expert,
an experienced designer of mechanical products, testified
that in the manufacturing process the rivet had been
misaligned with the hole through which it was supposed
to pass and as a result had not securely fastened the leg
to the platform. He thought that the rivet had fallen out
when the plaintiff opened or climbed up the ladder
and that the loss of the rivet had caused the ladder
to collapse or wobble, in either event precipitating the
plaintiff’s fall.
The defendant complains about discrepancies between
the expert’s report and his testimony. For example, the
No. 08-2370 3

report states that the rivet simply fell out of the ladder and
was undamaged; in fact, as he testified at trial, the rivet
had broken. We cannot see what difference that makes.
A more serious complaint is that the plaintiff’s expert
performed no test to determine whether the misalign-
ment of the rivet with the hole could cause the ladder to
collapse. But the defendant has never explained what
kind of test could be performed to determine that, except
to remove the same rivet from an identical ladder, have
a 350-pound man climb halfway up and start poking
with his hands in the ceiling, and see what happens. In
fact the defendant tried to conduct such a test, and the jury
was suitably unimpressed. A ladder (the same model as
the one that collapsed) was set up, with a screwdriver
inserted in the place where the rivet would have been
had it been properly aligned. A 215-pound man climbed
halfway up the ladder. He was holding on to the ladder,
for dear life as it were, when a string attached to the
screwdriver jerked it out of the hole. The platform
dropped about a half inch, and the guinea pig did not
fall off. Had he weighed another 135 pounds, had he not
been holding on to the ladder with both hands, and had
he been startled by the movement of the platform
rather than anticipating a movement, he might be the
plaintiff in a similar lawsuit.
The defendant also objects to the judge’s having per-
mitted the plaintiff’s expert to demonstrate to the jury
how the accident might have occurred. Using (it ap-
pears—the record is not completely clear) the very ladder
that had collapsed, the plaintiff’s expert jerked the rear
leg assembly, as one would do in opening a ladder, and
4 No. 08-2370

the leg with the missing rivet became detached from the
platform. The objection is that the expert’s report did not
mention that he was planning to conduct such a test. But
it was not a test; it was merely a demonstration to the
jury of what can happen when a rivet is missing. The
demonstration could just as well have been performed by
the plaintiff’s lawyer. There was no suggestion that the
expert used expert knowledge in jerking the ladder’s
rear leg.
The only other issues in the case relate to limitations
that the judge placed on the defendant’s efforts to
impeach (undermine) the plaintiff’s testimony. His testi-
mony was crucial in two respects. First, he testified that
he wasn’t doing anything on the ladder that might
have caused him to fall regardless of the defect in the
ladder. He did not have a clear recollection of the
accident itself—he testified that one moment he was
standing on the ladder looking for the short circuit and
the next moment he was on the floor. But nothing he
said indicated that he might have lost his balance for a
reason unrelated to any unexpected movement of the
ladder; he testified that he was trying to be careful. There
were no other witnesses to the accident. And the plain-
tiff’s testimony relating to the pain caused by the injury
to his back was the only evidence that related to that
aspect of his claim for damages.
This was a very close case, since even if the plaintiff’s
testimony is believed, it is only slightly more likely that
he fell because the rivet gave way than that he fell be-
cause, as anyone who has ever stood on a ladder knows, it
No. 08-2370 5

is hard to keep one’s balance if one doesn’t have at least
one hand on the ladder—though of course the fact that it
is so easy to fall off a ladder makes a defect that can
cause a ladder to wobble extremely dangerous.
The plaintiff had been convicted in 1995 of the sale of
firearms without a federal license by a convicted felon,
and had been sentenced to 88 months in prison. Rule 609(b)
of the evidence rules provides that evidence of a felony
conviction more than ten years old (the present case was
tried in 2008) is admissible to impeach a witness’s testi-
mony only if the probative force of the evidence sub-
stantially outweighs its prejudicial effect. The judge ruled
that the evidence met this standard, and so he permitted
the defendant’s lawyer to ask the plaintiff on the stand
whether he had been convicted of a felony. But the
judge limited the description of the felony to the sale of
firearms without a federal license—the lawyer was not
permitted to ask the plaintiff whether he had been con-
victed of the felony of the sale by a felon of firearms with-
out a federal license. That felony, obviously, had also
been committed more than ten years before the trial, and
the judge did not think the mention of it would satisfy
the standard in Rule 609(b) for admitting evidence of
prior acts to impeach a witness’s testimony.
We have some qualms about the judge’s having rewrit-
ten history, so that the jury was given an erroneous
description of the felony of which the plaintiff had been
convicted. The cases do permit the “sanitization” of prior-
crimes evidence used to impeach, but they mean by this
just concealing the nature or name of the crime, e.g., United
6 No. 08-2370

States v. Stokes, 211 F.3d 1039, 1042-43 (7th Cir. 2000); United
States. v. Hursh, 217 F.3d 761, 768 (9th Cir. 2000); United
States. v. Clark, 184 F.3d 858, 867 (D.C. Cir. 1999), and the
judge went further here. But had he not, he would have
had an unsatisfactory choice between allowing the jury
to hear about two old convictions or about none. The
defendant argues that its lawyer had not intended to tell
the jury what the predicate conviction for the firearms
offense had been. But this forbearance would have done
nothing to resolve the judge’s dilemma, for the jury would
have wanted to know what that conviction had been for,
and it would have been better that it be told than that it
be left to speculate.
The judge made a reasonable choice in the difficult
circumstances that he faced. Allowing a prior conviction
to be used to impeach a witness’s testimony is contro-
versial. E.g., Teree E. Foster, “Rule 609(a) in the Civil
Context: A Recommendation for Reform,” 57 Fordham L.
Rev. 1, 17-37 (1988). It is in tension with the most elemen-
tary conception of the rule of law—what Aristotle called
“corrective justice,” which means judging the case rather
than the parties. It is an aspiration that is given symbolic
expression in statues of Justice as a blindfolded god-
dess—blindfolded because she is not seeing the indi-
vidual characteristics of the parties and their lawyers:
their party affiliation, standing in the community, family,
personal attractiveness, record of achievement, social
class, ethnicity, and so forth. In the federal judicial oath
corrective justice is called deciding “without respect to
persons.” And so a felon is entitled to the same consider-
ation of the merits of his case as a litigant who has never
No. 08-2370 7

been convicted of a felony, and that entitlement is under-
mined by allowing a party to a lawsuit to draw the
jury’s attention to the fact that his opponent is a convicted
felon. “[E]ven a murderer has a right to be free from
torture and the correlative right to present his claim of
torture to a jury that has not been whipped into a frenzy
of hatred. At the argument of the appeal the lawyer for
the officers—who had been the prosecutor at Wilson’s
criminal trials—acknowledged in answer to a question
from the bench that he had tried to make the jury hate
Wilson.” Wilson v. City of Chicago, 6 F.3d 1233, 1236 (7th Cir.
1993).
The rationale for nevertheless allowing a prior crime
to be used to undermine testimony is that a person who
has committed a serious crime is more likely than a law-
abiding person to lie on the stand even if the case in
which he is testifying has nothing to do with that crime.
The rationale is underinclusive, since many people
who have committed a felony have not been caught or
if caught have not been convicted, because of the prosecu-
tion’s heavy burden of proof. Moreover, every judge is
aware that many people who do not have a criminal
record will lie in a trial when it is to their advantage.
A rule is a rule; Rule 609 does permit the use of a
felony conviction to impeach a witness and it is not our
place to question that use, or the judge’s decision (though
we may not have made it ourselves) that the 1995 con-
viction had enough probative force to overcome its prejudi-
cial effect. The relevance of the considerations discussed
in the preceding paragraph is that they support the
8 No. 08-2370

reasonableness of the district judge’s decision to
exclude the mention of the earlier conviction; its proba-
tive value would have been slight and its prejudicial
effect considerable.
The rule-of-law concerns that we have expressed have
even greater force with regard to the other effort at im-
peachment that the defendant was forbidden to at-
tempt. The plaintiff testified that he has been unable to find
work since his accident because he has psychological
problems that limit the type of job that he can do. His
injury prevented him from doing manual labor, and he
cannot do many other jobs because he cannot do work
that involves significant interaction with other people,
whether customers or coworkers. Previous employers
testified that the plaintiff was diligent and competent.
But his injury prevents his doing the kind of work that
he had done for them.
If a tortfeasor inflicts a graver loss on his victim
than one would have expected because the victim had
some pre-existing vulnerability, that is the tortfeasor’s bad
luck; you take your victim as you find him. That is the
famous “eggshell skull” rule of tort law, illustrated by
our decision in Stoleson v. United States, 708 F.2d 1217 (7th
Cir. 1983). But the defendant wanted to show that the
plaintiff did not suffer from a psychological problem
but rather that he had “creat[ed] psychological impedi-
ments to employment” and that his “anti-social” attitudes
“were solely in his power to control.” To this end the
defendant sought to introduce in evidence the following
excerpt from a report by a vocational counselor who
had interviewed the plaintiff:
No. 08-2370 9

Interpersonal skills/acceptance: He indicated that he
does not like people and tries to avoid them. He
said that his PO [parole officer] had him go to see a
therapist because of his antisocial behavior. He ex-
plained to me that he would probably if he saw a person
lying bleeding to death walk right over the person but that
if there was a hurt dog next to him he would stop and help
the dog. I asked if he would go up to people that he
worked with and socialize and he said that he would
sit in a corner or not go to lunch at all to avoid people.
He said that he did not have any anger issues at work
but that he did get suspended from work because he
would not show up for mandatory meetings and other
“crapola”. He said he would also get suspended for
not doing his mandatory reports. I asked what type of
reports and he indicated it was travel expenses. He
said that he had a neighbor girl do them because he
did not understand how a computer worked and
could not get the information in there right . . . . He also
mentioned that he really did like being in prison that he
was able to thrive there.
The judge allowed into evidence the entire passage
minus the sentences that we have italicized, which he
excluded under Rule 403 of the evidence rules. That rule,
the converse of Rule 609(b), provides that relevant evi-
dence should be excluded if its probative value is sub-
stantially outweighed by (so far as pertinent to this case)
its prejudicial effect.
The prejudicial effect is obvious, the probative value
nil. The admitted portions of the passage make clear that
10 No. 08-2370

the plaintiff is indeed seriously lacking in “interpersonal
skills/acceptance.” He does not like people and tries to
avoid them; his parole officer—another reminder of his
criminal past—made him see a therapist. The italicized
passages are a credit to the plaintiff’s candor, but would
be taken by many people to mark him as a monster. To
allow them into evidence would have made the trial a
trial of the man, not of the case. Their irrelevance to the
issues would have signaled to the jury that it could con-
sider, in arriving at a verdict, whether the plaintiff was
a good man or a bad man.
The defendant’s theory seems to be that the plaintiff
pretends to be a monster so that no one will hire him, for
if he had found a job after the accident, or at least had
prospects of finding one in the future, his damages
would be less. But it is impossible to believe that had
the italicized passages been admitted into evidence the
defendant’s lawyer would have argued to the jury that
the plaintiff just pretends to like dogs more than people
and prison more than freedom. The lawyer would not
have tried to rehabilitate the plaintiff’s character.
The plaintiff’s lawyer told us at argument without
contradiction that, although he had grown to like him,
his client is a frightening-looking man—huge (for he is six
foot two inches tall as well as weighing 350 pounds), with
a full beard, and a not particularly pleasing manner,
including while testifying (though this is not apparent
from the trial transcript), and of course an ex-con. It is a
tribute to the jury, and to the judge’s conduct of the trial,
that despite the closeness of the case, which would
No. 08-2370 11

have made it easy for the jury to return a verdict for the
defendant had it allowed emotion to influence it, the
plaintiff won. He must have impressed the jurors with
his candor, his lack of pretense—he did not pretend to
be something other than what he is.
The judgment in favor of the plaintiff is
A FFIRMED.

2-17-09