Roxanne Tidemann v. Nadler Golf Car Sales, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1794
Roxanne Tidemann,
Plaintiff-Appellant,
v.
Nadler Golf Car Sales, Inc.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 91 C 4053--Charles R. Norgle, Sr., Judge.
Argued January 18, 2000--Decided August 17, 2000
Before Easterbrook, Kanne, and Diane P. Wood, Circuit
Judges.
Diane P. Wood, Circuit Judge. Roxanne Tidemann
was severely injured when a Club Car golf car
that she was attempting to operate suddenly
lurched forward and crashed into a garage door.
Tidemann sued Nadler Golf Car Sales, Inc., which
had reconditioned the car and sold it to her
employer. Tidemann raised both strict liability
and negligence theories. The district court
dismissed the former as a matter of law; the jury
returned a verdict for Nadler on the latter.
After the trial, the district court awarded
Nadler costs pursuant to Federal Rule of Civil
Procedure 68. Tidemann now appeals. With respect
to everything except the award of costs, which
requires further proceedings on remand, we
affirm.
I
Club Car Inc. manufactures golf cars that
sometimes wind up in areas of service other than
golf courses. Typically, prior to resale, the
cars are reconditioned by dealers such as Nadler.
In 1989, Nadler sold a used car to a real estate
developer, Homes by Hemphill, which planned to
use the car in performing various service
functions around its developments. Tidemann was
working for Hemphill as a home sales
representative on July 14, 1989, when Nadler

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delivered the car to Hemphill. According to the
testimony of one of Nadler’s delivery
representatives, the car was left with a Hemphill
employee who claimed to know the safety
information about the car. Even so, the
representative said that he explained how to
operate the car anyway. The car was then left on
a driveway roughly 18 inches in front of a closed
steel garage door.
Tidemann was the first Hemphill employee to try
to use the car. When she got in, she had
difficulty starting it. She then looked around
for various instructions and warning labels, but
the only information came from a label on the
steering wheel. That label instructed Tidemann to
make sure that the wheels were pointed in the
right direction (they were) and to read the
owner’s manual (which Nadler had not provided).
Tidemann says that she then looked at the shift
mechanism and put it into what she believed to be
reverse (it has three positions--forward,
neutral, and reverse). She then pressed the
accelerator pedal, but nothing happened.
Tidemann then decided to try turning the
ignition key. She turned it 90 degrees and tried
again to back out, but still nothing happened.
She then turned the key still another 90 degrees,
but again the car did not respond. At this point,
she concluded that something was awry and that
she should turn the car off. She moved the
transmission lever to what she thought was
neutral, then returned the key to its original
position. Suddenly, the car lurched forward,
crashing through the garage door. The garage door
struck Tidemann in the face, causing extremely
serious injuries.
Tidemann and Nadler have quite different
characterizations of how much work Nadler
performed on the car. Tidemann suggests that
Nadler basically rebuilt the car from scratch,
whereas Nadler’s account sounds like little more
than a tune-up. At this stage, however, the
characterization is not terribly important. It is
not disputed that Nadler follows a checklist that
has several steps that are relevant here. One is
that Nadler checks the reverse buzzer, which
should have sounded had Tidemann really been in
reverse as she intended. More significantly,
Nadler "tighten[s] all nuts and bolts, all wire
connections, and forward-reverse lever screw."
Additionally, Nadler inspects the ignition and
key switch, a step that requires it to remove
part of the car’s plastic dashboard.
Although the parties dispute both the cause of
the accident and the various problems with the
golf car at the time it was delivered to

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Hemphill, Tidemann points to five basic defects
that she says led to her injuries. They are:
(1) A loose key switch mechanism, which
according to Tidemann allowed the key to turn
nearly 180 degrees without completing the circuit
and turning on the car. As a consequence of this,
Tidemann was unable to tell whether the car was
on or off when she was trying to put it in
neutral and get out of it. (The car is electric,
so there is no idle sound or vibration that would
indicate a running engine.) Because of this
spinning, the key housing could turn, make
contact, and activate the car even when the user
was trying to turn the car off.
(2) An altered housing for the key switch that
changed the opening from a "D" shape (that would
prevent key switch spin) to a complete circle
(which allowed the switch to spin).
(3) An improperly reconditioned shift lever
(discussed in more detail below). This problem
made it difficult to tell if the car was in
forward, neutral, or reverse.
(4) No owner’s manual came with the car.
(5) Certain warning labels specified by Club Car
service documents and specifications were not
included.
Tidemann sued Nadler in federal court, invoking
diversity jurisdiction and arguing that Nadler
was both strictly liable and negligent. Nadler
then brought a third-party complaint against Club
Car, which eventually settled out. Tidemann’s
strict liability theory was dismissed as a matter
of law, but her negligence claim went to the
jury. The jury returned a verdict on that part of
the case in which it apportioned 82% of the fault
for the accident to Tidemann and 18% to Nadler.
Under Illinois law, this meant that Tidemann lost
entirely. See 735 ILCS sec. 5/2-1116 (West 1994).
Nadler then moved for costs under Rule 68,
reasoning that since Tidemann had turned down an
offer of $5,000 in 1994 and had ended up with a
less favorable result after trial, it was
entitled to the costs incurred in obtaining
judgment. The district court agreed and awarded
$38,213 in costs. Tidemann now appeals.
II
Tidemann argues that the jury’s unfavorable view
of her negligence claim was the result of a
collection of adverse trial rulings that, in the
aggregate, denied her a fair trial. The most
important of these asserted errors fall into two
general categories--evidentiary rulings and jury

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selection procedures. With only one exception
relating to the interpretation of a stipulation
between the parties, the district court has broad
discretion in both of these areas, and we review
its decisions only for abuse. See United States
v. Hunter, 145 F.3d 946, 951 (7th Cir. 1998)
(evidentiary rulings); United States v. Magana,
118 F.3d 1173, 1206 (7th Cir. 1997) (jury
matters).
The most difficult of the evidentiary issues
relates to the testimony of Tidemann’s mechanical
engineering expert, Robert Tarosky. Tarosky
testified that when he examined the car, he found
that the set screw that connects the directional
lever to the control shaft was not properly
positioned. This increased the amount of movement
in the directional lever and made it difficult to
tell whether the car was in forward, reverse, or
neutral. The sticky problem was that Tarosky did
not examine the car until 1993, four years after
the accident occurred. Needless to say, this
created foundational concerns because of the
possibility that the set screw had been modified
or damaged between the time of the accident and
the time of Tarosky’s examination. Tidemann
countered with a stipulation that read as
follows:
The Plaintiff and Nadler Golf Car Sales, Inc.
stipulate and agree that the golf car involved in
this case was not used for approximately two
years after the accident. It was then moved to a
new location and put into use. The only
adjustment made before putting it into use was to
tighten the key switch. Otherwise, the golf car
remained in substantially the same condition from
the date of the accident through the end of 1993.
Tidemann argues that Nadler stipulated that the
condition of the set screw did not change,
eliminating any foundational problems. The
district court disagreed, reading the stipulation
as covering only the general condition of the
car, not every part, no matter how small. It thus
decided to exclude Tarosky’s testimony about the
excessive movement of the shift lever.
Since the stipulation amounts to a contract and
no extrinsic evidence of its meaning was
presented by either side, we review the district
court’s interpretation of it de novo. Braxton v.
United States, 500 U.S. 344, 350 (1991). On that
basis, we cannot agree with the district court’s
reading. While the phrase "the golf car remained
in substantially the same condition" standing
alone could be read to refer only to the car’s
general condition, the other language in the
stipulation overcomes such an interpretation. The
stipulation refers to a very specific change (the

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tightening of the key switch) and says that the
car was "otherwise" unchanged. This indicates
that Nadler stipulated that there was one small
change and no others.
Our disagreement with the district court’s
interpretation of the stipulation does not end
matters, however. The court also indicated that
"there [was] a substantial [Fed. R. Evid.] 403
issue clearly here." In its view, the probative
value of testimony concerning the condition of
the set screw after two more years of use was
minimal. With such a weak foundation, the court
was concerned that Tarosky’s testimony could
confuse or mislead the jury and thus create a
danger of undue prejudice to Nadler.
Consequently, the court also relied on Rule 403
to exclude Tarosky’s statements. This is an
independent ground for the ultimate ruling under
which the evidence was excluded, and unlike the
stipulation, it is one that we review only for
abuse of discretion. United States v. Hunter, 145
F.3d 946, 951 (7th Cir. 1998). While we would
have no reason to relieve Nadler of the
consequences of its stipulation if that were the
only ground cited by the district court, the
abuse of discretion standard of review leaves us
no reason on this record to second-guess the
trial judge with respect to the Rule 403 balance.
In the end, we cannot say that the decision to
exclude Tarosky’s testimony was so far out of
bounds as to constitute reversible error.
Tidemann’s other objections to the trial court’s
evidentiary rulings can be dealt with more
quickly. Most of them relate to the testimony of
Christopher Shaxted, Tidemann’s supervisor at
Homes by Hemphill. Initially, Tidemann had
planned to call Shaxted both as a fact witness
(because he talked with her shortly after the
accident) and an expert (offering his estimation
of her lost income based on his expertise in the
residential real estate industry). However, it
turned out that Shaxted made statements in a 1992
deposition that severely undermined Tidemann’s
case. Consequently, Nadler ended up putting him
on the stand.
Tidemann first says that Shaxted’s testimony
should have been barred because of a supposedly
improper ex parte contact between Nadler’s
counsel and Shaxted. Apparently, Nadler’s
attorney contacted Shaxted and served a subpoena
without notifying Tidemann’s counsel. Tidemann
maintains that Nadler violated the usual rule
prohibiting ex parte contacts with experts from
the opposing side. See, e.g., Erickson v. Newmar
Corp., 87 F.3d 298, 301-02 (9th Cir. 1996).
However, the two justifications for this rule--
that the expert may have confidential information

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that should be protected from the adversary and
that the Federal Rules of Civil Procedure heavily
regulate the use of experts--are not applicable
here. Nadler’s contact with Shaxted (which was in
fact just to tell him when to show up) had
nothing to do with his expert role (which related
to Tidemann’s lost real estate sales income).
Nadler was interested in him solely as a fact
witness; its contact with him was entirely
innocent; and we therefore see no abuse in the
district court’s decision to permit his
testimony.
Additionally, Tidemann claims that the district
court improperly allowed the use of Shaxted’s
1992 deposition for the purpose of impeaching his
testimony. More specifically, Nadler wanted to
impeach Shaxted’s trial testimony (which favored
Tidemann’s account of what happened) with his
statement in deposition that Tidemann
"indicate[d] to [him] that the car was in gear
when she was trying to start it." Tidemann now
maintains that the trial court allowed the use of
Shaxted’s impressions for impeachment purposes
and that this was contrary to our opinion in
United States v. Allen, 798 F.2d 985 (7th Cir.
1986). Allen, however, addressed an entirely
different issue. Allen held that a federal
agent’s impressions of what a witness said were
outside of the scope of the Jencks Act because
the agent’s impressions of what a witness said
could not be used to impeach the witness. Allen
might be relevant if Nadler had wanted to use
Shaxted’s impressions to impeach Tidemann. But
that was not its game plan. It wanted instead to
use the earlier statements to impeach Shaxted
himself. Tidemann presents no reason why this
would be improper.
Finally, Tidemann argues that the district court
should have allowed the deposition testimony of
Chuck Rogers, a Club Car reconditioner who she
proffered to give testimony about the proper
method of reconditioning Club Car key switches.
The district court decided that since the jury
could look at the switch itself and since the
proper way of reconditioning it was "almost a
question of common sense," there was no need to
allow Rogers’s deposition. It excluded the
deposition under Rule 403. We confess to some
discomfort about the way the judge phrased this:
expert testimony is often necessary precisely
because the layperson’s "common sense" will cause
her to overlook something that an expert knows is
important. Nevertheless, because the judge again
relied on Rule 403, and because Tidemann presents
no argument suggesting that the court’s decision
was an abuse of discretion (other than the
implication that the court had too rosy a view of
the jurors’ mechanical sophistication), we again

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defer to the trial judge’s assessment of the
evidence.
Tidemann also claims that the jury was unfairly
tainted against her. First, she points to the
presence of juror Christie Swenson, who she says
should have been dismissed for cause. Tidemann
was concerned that Swenson (1) would have to
catch a 5:45 A.M. train in order to make it to
court on time and (2) owned a golf car that was
used on her family farm. It goes without saying
that Tidemann’s theory that early birds are unfit
to serve as jurors is meritless. Nor do we see
any abuse of discretion in the district court’s
willingness to allow Swenson to serve even though
she owned a golf car. The court established
during voir dire that Swenson did not even know
the manufacturer of her car, nor was there any
other reason to believe that she would be any
more biased against Tidemann than car owners in
an automobile products liability case.
Next, Tidemann complains that the district court
unfairly granted the defendants (Nadler and Club
Car at the start of the trial) three peremptory
challenges each (for a total of six on the
defense side), while it gave her only three.
Under 28 U.S.C. sec. 1870, multiple defendants
may be "considered as a single party for the
purposes of making challenges, or the court may
allow additional peremptory challenges and permit
them to be exercised separately or jointly." In
other words, the allocation of peremptories in
multiple defendant cases is left to the
discretion of the trial court. Neither side cites
to, nor could we find, a reported appellate
decision that holds that the district court’s
allocation of peremptories under sec. 1870 was an
abuse of discretion. That is not to say that it
could never happen, but it does suggest that
Tidemann has a steep hill to climb. She presents
nothing to suggest that her case was somehow
extraordinary or that the allocation of
peremptories was otherwise patently unfair, and
so we find no abuse of discretion here, either.
In short, none of the district court’s
decisions relating either to the evidence
presented or the composition of the jury
constitutes reversible error. Tidemann lost
before the jury and she has offered no persuasive
reason why we should upset its decision.
III
Tidemann also maintains that the district court
erroneously granted Nadler judgment as a matter
of law on her strict liability claim. The parties
make much of whether there was sufficient
evidence of a causal link between whatever

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defects existed at the time the car left Nadler’s
control and Tidemann’s eventual injury. They also
argue about whether under Illinois law a seller
or reconditioner of used goods can ever be liable
under a strict products liability theory. Many
cases suggest that the answer to this question is
no. See, e.g., Peterson v. Lou Bachrodt
Chevrolet, 329 N.E.2d 785, 787 (Ill. 1975); Timm
v. Indian Spring Recreation Ass’n, 543 N.E.2d
538, 541 (Ill. App. Ct. 1989); Abel v. General
Motors Corp., 507 N.E.2d 1369, 1376 (Ill. App.
Ct. 1987). Tidemann argues that these are
distinguishable because of the amount of work
that Nadler performed as well as its relationship
with Club Car, the original manufacturer.
Additionally, the recently published Third
Restatement of Torts suggests that where, as
here, a reseller remanufactures a product and
advertises it as "like new," products liability
doctrines may apply. See Restatement (3d) of
Torts: Products Liability sec. Eight.
We need not offer a non-binding guess as to
whether Illinois courts would agree with
Tidemann’s distinctions or would follow the Third
Restatement’s lead on this issue. Under
applicable Illinois law, "In all actions on
account of bodily injury or death or physical
damage to property, based on negligence, or
product liability based on strict tort liability,
the plaintiff shall be barred from recovering
damages if the trier of fact finds that the
contributory fault on the part of the plaintiff
is more than 50% of the proximate cause of the
injury or damage for which recovery is sought."
735 ILCS sec. 5/2-1116; Freislinger v. Emro
Propane Co., 99 F.3d 1412, 1417 (7th Cir. 1996);
Hobart v. Shin, 705 N.E.2d 907, 910-11 (Ill.
1998). (This section was subsequently amended and
those amendments were then invalidated by the
Supreme Court of Illinois in Best v. Taylor
Machine Works, 689 N.E.2d 1057 (Ill. 1997). Those
developments, however, are of no moment to this
case because the amendment applied only to causes
of action accruing after March 9, 1995. See 735
ILCS sec. 5/2-1116(e) (Supp. 1999).) Section 5/2-
1116 makes clear that it does not matter whether
a plaintiff’s case is based on negligence or
"product liability based on strict tort
liability." If the jury concludes that her own
negligence was more than 50% of the cause of her
injuries, then no damages are to be awarded
regardless of the different theories of liability
that a plaintiff might assert. Here, the jury
decided that Tidemann was 82% responsible for
what happened to her. There is no reason to think
that the jury would have changed its opinion of
the role that Tidemann’s negligence played in her
accident had it also been instructed in an
alternate theory of Illinois products liability

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law, especially since the district court rightly
presented Nadler’s sec. 2-1116 affirmative
defense to the jury as an entirely separate
issue. So, even if Tidemann is correct that
Illinois law would allow a strict liability claim
under these circumstances, Nadler proved to the
jury an affirmative defense that would have
overcome this theory.
IV
Finally, Tidemann appeals the district court’s
decision to award $38,213 in costs to Nadler.
Nadler argues, and the district court agreed,
that when it made an offer to Tidemann to settle
her case for $5,000, it triggered Rule 68, which
provides that "[i]f the judgment finally obtained
by the offeree is not more favorable than the
offer, the offeree must pay the costs incurred
after making the offer." The district court
concluded that since losing (and therefore
getting nothing) is worse than getting $5,000,
Rule 68 applied and Nadler was therefore entitled
to the $38,213 in costs that it incurred
subsequent to its offer. This ruling overlooked
the Supreme Court’s opinion in Delta Airlines v.
August, 450 U.S. 346 (1981), where the Court held
that Rule 68 costs are available only to a
plaintiff who obtains judgment in her favor, but
recovers less than the settlement offer. It does
not apply to a case like this one, where the
judgment is for the defendant. Id. at 352. See
also Stomper v. Amalgamated Transit Union, 27
F.3d 316, 319 (7th Cir. 1994) (requiring a
"positive award" to the offeree to trigger Rule
68); Lentomyytni Oy v. Medivac, Inc., 997 F.2d
364, 368 (7th Cir. 1993) (following Delta
Airlines).
The question remains whether Nadler has
forfeited the right to obtain its proper costs
because it cited the wrong Federal Rule of Civil
Procedure to the district court. Under Rule
54(d), as the prevailing party, it was entitled
to its costs unless the court otherwise directed.
The proper measure of those costs is set forth in
28 U.S.C. sec. 1920. The amount of costs the
court calculated using Rule 68 bore no necessary
relation to the proper measure of costs allowable
under sec. 1920, but we conclude that Nadler is
entitled to the latter. We therefore vacate the
district court’s cost award and remand the issue
of costs for recalculation under the proper
standards.
V
For the forgoing reasons, we Affirm the judgment
of the district court with respect to all aspects
of this case except for the award of costs under

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Rule 68. That portion of the judgment is Vacated
and Remanded for further proceedings consistent
with this opinion.

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