ERVIN, Circuit Judge:
The plaintiffs, James A. Dennis and his wife, Jean D. Dennis, brought this federal diversity action against the defendant, General Electric Company ("G.E."), based on their allegation that James Dennis was negligently exposed to radiation while he participated in the demolition of G.E.'s SL-1 Army Nuclear Reactor in 1962. Plaintiffs also allege that this unnecessary exposure to radiation ultimately caused James Dennis to contract a rare form of cancer known as Waldenstrom's Macroglobulinemia in 1977. However, after a lengthy trial, the jury determined that James Dennis' exposure to radiation did not cause him to contract Macroglobulinemia. The district court then denied plaintiffs' motion for a new trial.
On appeal, plaintiffs strenuously assert that the district court's denial of their motion for a new trial constitutes an abuse of discretion because they were substantially prejudiced by defense counsel's improper communication with the jury. We disagree.
Early in the trial, the jury asked the courtroom clerk to deliver a Sunday morning comic strip cartoon successfully satirizing lawyers to defense counsel, Donald E. Jose. After enjoying the cartoon's well-intentioned humor, Jose showed it to plaintiffs' counsel, John E. Sutter, and informed him that the cartoon had come from the jury. During his closing argument, Jose told the jury that they had experienced many different events including good natured humor. He then remarked:
Plaintiffs did not object to Jose's reference here to the cartoon the jury gave him. After the jury returned an unfavorable verdict, however, plaintiffs moved for a new trial on the basis that the cartoon and Jose's subsequent reference to it constituted an impermissible jury communication. The district court denied the motion because (1) the objection to the cartoon was untimely, and (2) Jose's reference to the cartoon in his closing argument was harmless. We agree with the district court.
Failure to Object at Trial
It is the universal rule that during closing argument counsel "`cannot as a
When Jose referred to the cartoon in his closing argument, plaintiffs were aware of all the necessary facts upon which they could base an objection to the cartoon reference. Nevertheless, they remained silent until after the jury returned its verdict. As a consequence, we agree with the district court that
(J.A. 107). Manifestly, the district court's alleged error in permitting Jose to refer to the cartoon in his closing argument without later giving what amounts to an unsolicited cautionary instruction was not sufficiently obvious or severe to render an objection by the plaintiffs unnecessary. Consequently, plaintiffs unexcused delay in asserting that the cartoon reference was an improper jury communication precludes our consideration of that asserted error on the merits.
After observing the entire trial and reviewing the cartoon, the district court concluded the cartoon did not cause plaintiffs to suffer even "the slightest bit of prejudice." Unlike our review on appeal, the district court had the unique opportunity to observe every facet of the trial and the jury's actions throughout it. Therefore, we do not hesitate to give the district court's finding of no prejudice substantial weight.
Because the other grounds for granting a new trial are inapplicable, plaintiffs argue that a new trial is necessary here to avoid a miscarriage of justice. Ellis v. International Playtex, Inc., 745 F.2d 292, 298 (4th Cir.1984). However, no miscarriage of justice occurred here. The cartoon depicted lawyers in a humorous light. It revealed no favoritism by the jury for either side. Jose's reference to the cartoon was no more than a polite acknowledgment to the jury that he had received it. There was no clandestine communication by Jose with the jury. The evidence reveals no calculated attempt by Jose to prejudice plaintiffs through his benign reference to the humorous cartoon. Where, as here, the "contact" with the jury was indirect and inadvertent, the verdict should not be disturbed unless the contact appeared to improperly influence the jury. Budoff v. Holiday Inns, Inc., 732 F.2d 1523, 1525 (6th Cir.1984).
Unless the jury's impartiality is sacrificed, mere technical and unintentional contacts between counsel and the jury should be deemed harmless. Cf. McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984). There is no discernible reason why Jose's reference to the cartoon
For the foregoing reasons, the judgment of the district court is hereby