ILNews

Jury awards $27M in damages

Back to TopCommentsE-mailPrintBookmark and Share

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.”•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  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.

ADVERTISEMENT