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Jury awards $27M in damages

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

A liability lawsuit filed by the victims a year after the May 2004 blast went through years of pretrial proceedings and discovery disputes, and this November the family received a jury verdict of $27 million. With liability split between the property owner and defendants, the final damages amount translates to $17.5 million.

explosion-15col.jpg A May 2004 propane explosion in Morgan County destroyed an apartment and connected horse barn, resulting in one man’s death and six others being burned. A jury recently awarded $27 million in damages to the victims – $17.5 million after liability was calculated. (Submitted photo)

Plaintiffs’ attorney David Herzog believes that final verdict may be the largest in the county’s history, but the litigation is far from finished as the parties continue debating attorney fees and an appeal is planned. Legal lessons from the litigation are focused on what led to the $27 million verdict and liability-limited amount, how the issue of post-traumatic stress disorder played into the trial and the question about what monetary amount is warranted in these types of situations.

“We are pleased with the jury’s verdict,” said Herzog, an attorney with Baker & Daniels in Indianapolis. “This has been a very long process and it’s been quite an ordeal for our clients. They suffered not only horrific injuries and the loss of a husband and father, but they continued to suffer from emotional distress. That was a key part of this case and received considerable attention at trial.”

At the heart of the litigation is the May 12, 2004, explosion at the farm located about 12 miles northwest of Martinsville. The owners, William and Betty Kindle, were away on a 50th anniversary cruise and their granddaughter, Courtney Frederick, agreed to house-sit. Her husband, Stephan, and 2-year-old son, Samuel, were with her, as well as her uncle, Lonnie Kindle; 2-year-old cousin, Sierra Davis; and Sierra’s parents, K.C. and Jodi Davis.

They were all sleeping inside when the explosion happened shortly after 7 a.m., and Stephan was killed while the others were burned. The victims sued a year after the incident and discovery disputes ensued before the liability trial happened in 2010. Marion Superior Judge Robyn Moberly began as 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.

Last year, the jury decided South Central Indiana Rural Electric Membership Corp., RushShelby Energy Rural Electric Cooperative and SCI Propane LLC were 65 percent liable for the accident, and that Courtney’s now-deceased grandfather shouldered the remaining 35 percent liability.

A side issue about what defendants needed to turn over in discovery arose. Last year, the Court of Appeals reversed a sanction against defendant water-heater maker White-Rodgers that Moberly had imposed for not turning over certain material in the litigation. The appellate panel found White-Rodgers had turned over what it needed to and reversed the sanction. At trial, the jury found White-Rodgers wasn’t liable in the explosion.

In November 2011, the damages aspect of the trial took place and found the defendants at fault for $17.5 million in damages for the victims. Herzog said it’s too early to know what amount the plaintiffs might actually receive, depending on the appeal. He didn’t know any details on how the money could be used if the verdict is upheld.

“As inadequate as it may be, money is the only way our system compensates people in these circumstances and that jury found that was necessary in this case,” he said.

For the damages trial, Herzog spent part of the trial telling the jurors about the explosion from Courtney’s perspective. When trying to escape the burning house in the explosion’s aftermath, the then-28-year-old mother grabbed her young son and pushed her husband and uncle outside through a hole in the living room wall, burning her arms and other parts of her body. She went back inside and scooped up Sierra, saving the girl’s life.

Aside from telling the story of what happened in the explosion, Herzog said a key strategy in the damages trial was emphasizing the emotional distress and post-traumatic stress disorder that resulted from the tragedy. The plaintiffs called in the treating physicians and burn unit nurses, as well as mental health professionals and experts in PTSD. While testimony from experts on the economic losses the victims faced as a result of the tragedy is the same type of evidence presented in any personal injury or wrongful death case, Herzog said the emotional and mental health experts’ testimony was more unique.

“I think the post-traumatic stress aspect factored more heavily in this case than most, that would be my suspicion,” Herzog said.

kindle-table.gifDefense attorneys in this case questioned whether the victims did enough to treat and deal with their emotional distress and PTSD. The plaintiffs’ counsel offered expert testimony and evidence proving how common it is for victims to not want to trigger memories of the incident and to avoid some treatment. Experts said that while the incident itself was traumatic, the post-explosion treatment and burn therapy was also traumatic and factors into the damages discussion. Adults can rationally understand what is happening but children, such as the pair of 2-year-olds who were burned, cannot reason through that experience. Another related aspect that surfaced was whether any certain amount of damages was needed and what that might mean for the victims.

Other personal injury attorneys in Indiana say the PTSD aspect doesn’t surface in litigation as much as other related issues, such as emotional distress, which involves some of the same litigation elements in testimony and evidence.

In Indianapolis, plaintiff lawyer Scott Montross said he’s only been involved in one PTSD case and said the common challenge in those types of cases involves the disorder not being diagnosed immediately after a traumatic event. The condition affects people in different ways, with some suppressing it entirely while others obtain limited counseling. Montross said he has consistently found in more than 40 years of litigating that clients deposed a year or more after an incident will sometimes breakdown as soon as the questions gets anywhere close to what happened with the traumatic event.

“As for the damages amount associated with this area, I’m convinced these damages are every bit as real as the physical injuries,” Montross said. “In fact, while the physical can eventually subside, the emotional piece can be another issue altogether. I’ve told juries before and will tell them again, when you get into these size damages, it isn’t how much, as it is whether the harm has been balanced. And the extent of the harm is a function of the evidence presented.”

Defense attorney Kent Frandsen with Parr Richey Obremskey Frandsen & Patterson declined to comment about factual or legal rulings in the lawsuit since the case is still pending before the trial judge on an attorney fees issue and an appeal is planned on the damages aspect.

“We will ask the appellate court to review several matters, including the judge’s post-verdict reallocation of the jury’s findings of fault,” Frandsen said. “Almost half of the damage award is for fault the jury found to be the responsibility of non-party Midland-Impact, not the SCI Propane companies. Also, we believe insufficient evidence was presented to support any finding of fault by SCI in this case.”•

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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