Attorneys say ruling confuses discovery regarding expert materials

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.

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.

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.•