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Attorneys say ruling confuses discovery regarding expert materials

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Six years ago, a water heater explosion leveled an apartment attached to a rural Morgan County barn, resulting in one man’s death and four of his family members being severely burned.

But a liability lawsuit filed by the victims a year after the May 2004 blast erupted in its own metaphorical explosion of discovery disputes. Attorneys battled over what should be admitted as discovery, and the Indiana Court of Appeals weighed in on what trial rules allow as far as non-testifying expert statements involving related but unconnected cases that are closed or settled.

An April 14, 2010, appellate decision came two weeks after the Morgan Superior jury trial began, although the ruling came down prior to the trial’s culmination. That happened in the first week of May, resulting in a divided appeals panel that has left attorneys disagreeing about what it means for Indiana law.

One side says it sets a bright-line rule on the issue, while the opposing counsel says it clouds the waters and means more confusion is likely on the horizon for those in the litigation trenches in trial courts statewide.

But those wanting to know for sure may have to analyze for themselves the appellate ruling in White-Rodgers, et al. v. Lonnie Kindle, et al., No. 55A05-0906-CV-308, which included a 19-page majority decision and 10-page dissent criticizing the final result.

At the heart of the underlying litigation before any discovery disputes arose is a May 12, 2004, explosion at 3818 Upper Patton Park Road near Monrovia in Morgan County. Steve Fredrick, 32, died in the explosion, while his wife, 2-year-old son, an uncle, and 2-year-old cousin were all badly burned.

Investigators blamed the blast on a propane leak in the apartment, which was connected to a barn. The victims filed a suit in 2005 against several utility companies, including the Emerson Electric division of White-Rodgers that had manufactured the gas control on the water heater in the apartment where the explosion occurred.

Litigation battles ensued in the years before trial, and the family and several utility companies have been fighting to determine who was liable and to what extent. Marion Superior Judge Robyn Moberly began as a special judge in late 2008 after one of the utility defendants asked for a new judge in the case that would end up with more than 200 motions and filings and lead to a three-week jury trial.

When she began presiding, the parties were already wrapped up in a dispute about what White-Rodgers should have to produce as far as non-privileged documents from a similar ongoing Missouri case against the company that also involved a propane gas explosion and water heater gas valve. Citing a 22-year-old precedent in American Buildings Co. v. Kokomo Grain Inc., 506 N.E.2d 56 (Ind. Ct. App. 1987), the plaintiffs argued that White-Rodgers had to produce all expert materials from the Missouri case because the case had been settled and those documents weren’t entitled to discovery protection. That court held in American Buildings that advisory consultants from prior litigation are not protected from discovery by Trial Rule 26(B)(4)(b). Judge Moberly ruled against the company and ordered the documents be produced, but later backtracked on that decision and limited the discovery to expert witnesses from the out-of-state case. White-Rodgers responded that it hadn’t classified any expert witnesses in that other case and didn’t have any more material to provide for discovery.

Judge Moberly later conducted a hearing during which she ruled White-Rodgers hadn’t shown the Missouri case experts were solely consulting or advisory, and she granted a sanctions order for the discovery production and $18,187 in attorneys fees.

Bryan Babb Babb

That all led to this appeal. In its recent split decision, a majority of the three-judge appellate panel reversed the discovery sanction against White-Rodgers and found the experts consulted in the prior case were never designated as experts who’d testify at trial, meaning those materials didn’t have to be disclosed.

Relying on precedent from Reeves v. Boyd & Sons, 654 N.E. 2d 864, 874 (Ind. Ct. App. 1995), and RR. Donnelley & Sons Co. v. N. Tex. Steel Co., 752 N.E.2d 112, 132 (Ind. Ct. App. 2001), that have “stressed the importance of whether an expert has been designated as a testifying expert, Chief Judge John Baker and Judge Ezra Friedlander found that White-Rodgers had produced all it needed to and that plaintiffs didn’t show any exceptional circumstances as required by Trial Rule 26(B)(4)(b).

The majority said the Reeves and Donnelley decisions actually had narrowed the American Buildings precedent that may have been overly broad in saying expert materials from prior-terminated litigation are subject to discovery in later litigation without regard for the expert witness designation.

“Moreover, to hold that Rule 26(B)(4)(b) discovery protections do not extend to subsequent litigation would chill the purposes of the discovery rules …,” Chief Judge Baker wrote, saying it would hamper settlements and possibly sway parties not to settle at all.

The majority determined that this case is similar to the Missouri case that White-Rodgers had previously settled, and it would be reasonable to infer that those expert materials would assist the company in developing its litigation strategy. Plaintiffs could use their own resources to get that same information, not rely on the already-purchased materials from the prior case, the two judges noted.

But disagreeing with his colleagues, Judge Terry Crone wrote that he reluctantly agreed the court had jurisdiction in this case and he would have required White-Rodgers to disclose that expert material.

“Although American Buildings has been on the books and guided discovery proceedings in Indiana for nearly a quarter century, the majority gives it short shrift and criticizes its holding as ‘overly broad.’ I respectfully disagree,” he wrote, adding his disagreement that Reeves and Donnelley narrowed the 1987 ruling. “As such, I believe that American Buildings, in addition to being soundly reasoned, remains very much alive and well as binding precedent.”

Judge Crone also noted the majority’s “undue emphasis” on the economic impact of expert disclosures is based on an “outmoded concept of jurisprudence that often valued a party’s financial resources more highly than fundamental fairness and the search for truth.”

“The modern discovery process is a balance weighted more heavily in favor of disclosure, and I believe the mere economic value of expert materials – especially from terminated litigation – is an insufficient justification for nondisclosure,” he wrote.

Jon Laramore Laramore

Reacting to the full decision, the family’s appellate attorney Jon Laramore with Baker & Daniels said he isn’t sure where the law now stands.

“The meaning of the majority decision is difficult to assess,” he said. “Previously, the rule under American Buildings was that all material was disclosable when a case was over. (The) White-Rodgers decision didn’t apply that rule, but I’m not sure what rule remains after this has been decided now.”

He found Judge Crone’s dissent interesting, particularly a point that says the American Buildings holding is consistent with the majority federal rule and that’s been in place for more than 20 years without much difficulty in applying it.

The issue could very well arise in another case with a discovery dispute because this makes it more difficult to understand what expert materials are available from a closed case, Laramore said.

“This will make trial judges have to sort out where the line gets drawn between American Buildings and White-Rodgers, and it will be difficult for parties to agree on where that line falls based on these two rulings,” he said. “I see an increase in litigation and discovery in cases where there’s repeat litigation over the same product or incident, or in any situation where a party is using the same experts in multiple cases.”

Indianapolis appellant attorney Bryan Babb at Bose McKinney & Evans, who represented White-Rodgers, disagreed with his colleague and said the rule from this case is clear.

“This clarifies that regardless of whether a case concludes, settles, or is currently active, that materials associated with nontestifying experts won’t be discoverable. Prior to this, one view of the law could have been that only consulting materials were protected in active, ongoing cases – that once it’s settled or concluded, those would be discoverable. Now, we know they’re never discoverable. Really, anytime you have a bright-line rule like this, it simplifies rules for everyone.”

Despite the holding in this case, the full effect of this new caselaw didn’t impact the underlying White-Rodgers trial, though. The company turned over the requested discovery to plaintiffs before the trial began in April – before the appeal came down in the second week. That was one of the reasons why transfer wasn’t sought, in addition to the case being tried on the merits, both attorneys said.

In its final verdict, the jury assigned 35 percent of the liability to William Kindle, who owns the property where the explosion happened; 30 percent to the non-settling gas company, Midland Impact LLC; and 17.5 percent each for South Central REMC and RushShelby REC Inc. The jury found that SCI Propane LLC, SCI Services LLC, and White-Rodgers have no liability. The trial was split into liability and damages phases, and the judge will either hold a second trial or mediation on what the damages will amount to for each liable party.

Babb said the company was hoping that the end-result wasn’t going to require it to produce the handful of documents that had been withheld, but that is how the litigation and appeal process can run into each other.

“This is an example of how an interlocutory appeal as a matter of right can arise, and if the trial isn’t stayed as this one wasn’t going to be, it shows how those can intercede and might create issues during ongoing litigation,” he said.•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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