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March 17, 1982


The opinion of the court was delivered by: WEINER


This diversity action for personal injuries was tried to the court sitting with a jury. The jury returned a verdict in favor of the defendant. *fn1" Presently before the court is the motion of the plaintiff for a new trial. For the reasons which follow, the motion is denied.

 The plaintiff sets forth eight grounds for new trial. The first is that the court refused plaintiff's request to send documentary evidence out to the jury.

 During the trial, plaintiff offered six documentary exhibits into evidence. These were accepted by the court. The plaintiff's counsel failed to request that the exhibits be sent out with the jury until sometime after the jury began its deliberations. At the time of the request by plaintiff's counsel, defendant's counsel could not be located. Consequently, the court denied the request.

 Preliminarily, plaintiff asserts that as this is a diversity action, the court must look to the substantive law of Pennsylvania in determining whether plaintiff's exhibits were properly withheld from the jury. (Memorandum of Authorities Supporting Plaintiff's Motion for a New Trial at 4, hereinafter "Plaintiff's Memorandum"). In support of this assertion, plaintiff relies on Shane v. Warner Mfg. Corp., 229 F.2d 207 (3d Cir.), cert. dismissed, 351 U.S. 959, 76 S. Ct. 860, 100 L. Ed. 1481 (1956) ("Shane"). Plaintiff then argues that under Pennsylvania law, while the trial court may exercise a modicum of discretion in ruling on which exhibits will be sent to the jury, "the court may not withhold exhibits admitted into evidence from the jury without cause." (Plaintiff's Memorandum at 5). Plaintiff argues, finally, that the unavailability of defendant's counsel was insufficient cause for denying plaintiff's counsel's belated request to submit the exhibits to the jury, and that the denial constitutes an abuse of the court's discretion. Again, plaintiff refers to Pennsylvania authorities to support his position.

 At the outset we observe that federal and not Pennsylvania law controls our determination of the issue under consideration. Shane was decided prior to the promulgation of both the Federal Rules of Evidence and significant amendments to the Federal Rules of Civil Procedure. *fn2" The Rules of Evidence are to be applied in diversity actions with the exception of certain rules which refer back to parallel state rules. Fed. R. Evid. 1101(b); Johnson v. William C. Ellis & Sons Iron Works, 609 F.2d 820, 821-22 (5th Cir. 1980). In addition, federal law governs all other procedural matters in diversity cases. BBallou v. Henri Studios, Inc., 656 F.2d 1147, 1153 (5th Cir. 1981). This is so even in the absence of a pertinent federal rule:

One of the shaping purposes of the Federal Rules is to bring about uniformity in the federal courts by getting away from local rules. This is especially true of matters which relate to the administration of legal proceedings, an area in which federal courts have traditionally exerted strong inherent power, completely aside from the powers Congress expressly conferred in the Rules.

 Hanna v. Plumer, 380 U.S. 460, 472-73, 85 S. Ct. 1136, 1145, 14 L. Ed. 2d 8 (1965) (quoting Lumbermen's Mutual Casualty Co. v. Wright, 322 F.2d 759, 764 (5th Cir. 1963)).

 Plaintiff refers repeatedly to the substantive law of Pennsylvania governing the submission of exhibits to the jury. Apparently, as plaintiff understands Shane, state law pertaining to this issue was applied because the matter was substantive in nature thus requiring the application of the doctrine enunciated in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938) ("Erie"). Plaintiff has misinterpreted the case. At the time Shane was decided, former Civil Rule 43(a) governed the matter of submission of exhibits to the jury. Rule 43(a) provided, inter alia, that evidence was admissible "under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held." See, Wright, Law of Federal Courts, § 93 (3d ed. 1976). Thus, the court in Shane applied state procedural, rather than substantive, law in deciding the case. Former Rule 43(a) was superseded in 1975 by the Federal Rules of Evidence. See, Wright, Law of Federal Courts at 456-57.

 None of the Federal Rules of Evidence or Civil Procedure pertain to the submission of exhibits to the jury. Accordingly, we are confronted with a situation similar to that addressed in Erie. There, the Supreme Court, in construing the "Rules of Decision Act," Judiciary Act of 1789, § 34, 1 Stat. 92, held that federal courts sitting in diversity cases are bound by state decisional as well as state statutory law when deciding questions of a substantive nature. See, Erie at 78, 58 S. Ct. at 822. Erie has been construed in subsequent case law to stand for the broader proposition that in diversity suits, federal courts are to apply state substantive law and federal procedural law. Hanna v. Plumer, 380 U.S. at 465, 85 S. Ct. at 1140. Substance-procedure distinctions are to be made with reference to the "twin aims of Erie : discouragement of forum shopping and inequitable administration of the laws." Id. at 465-68, 85 S. Ct. at 1140-42.

 Variations in state and federal practice with regard to the submission of exhibits to the jury are not substantial and, in any case, are unlikely to influence the plaintiff's choice of forum. Accordingly, any rule governing the matter is clearly procedural and controlled by federal law.

 The determination as to whether the jury will be permitted to take exhibits to their deliberation room lies within the sound discretion of the trial court. United States v. Gross, 451 F.2d 1355, 1359 (9th Cir. 1971); Murray v. United States, 76 U.S. App. D.C. 179, 130 F.2d 442, 444 (D.C.Cir.1942); Chuy v. Philadelphia Eagles Football Club, 431 F. Supp. 254, 268 (E.D.Pa.1977), aff'd, 595 F.2d 1265 (3 Cir. 1979); Green v. Philadelphia Gas Works, 333 F. Supp. 1398, 1405 (E.D.Pa.1971), aff'd, 478 F.2d 313 (3 Cir. 1973).

 It follows, then, that the court may deny a request by counsel to send certain exhibits to the jury room for use during deliberation. United States v. Taylor, 480 F.2d 618, 619 (5th Cir. 1973). Such a denial does not constitute an abuse of judicial discretion absent a showing that the exclusion of evidence was prejudicial. See, Leathers v. United States, 471 F.2d 856, 863 (9th Cir. 1972); Murray v. United States, 130 F.2d at 444.

 Here, the plaintiff has not shown the court how he was prejudiced but rather concludes that the fact that the jury returned a verdict against him on the liability issue confirms the ...

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