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WHITE-RODGERS_ ET AL . V. KINDLE_ ET AL

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WHITE-RODGERS_ ET AL . V. KINDLE_ ET AL Powered By Docstoc
					                           COURT OF APPEALS OF INDIANA
                           ORAL ARGUMENT AT A GLANCE
                                CARMEL HIGH SCHOOL
                                   AUDITORIUM


  WHITE-RODGERS, ET AL. V. KINDLE, ET AL.

           CIVIL LAW ISSUE:                            ORAL ARGUMENT:
         Today the court will hear                   Thursday, January 21, 2010
     arguments regarding whether a                          10:00 a.m.
     trial court abused its discretion                 20 minutes each side
     when it ordered White-Rodgers
       to pay $18,187 in attorneys'
     fees as a sanction for discovery                     APPEAL FROM:
       noncompliance and whether                      Morgan Superior Court,
         the underlying discovery                         The Honorable
           orders are erroneous.                      Robyn L. Moberly, Judge


                                   CASE SYNOPSIS
Facts and Procedural History                     White-Rodgers to allow the Plaintiffs to
        In 2004, an explosion occurred at an     participate in depositions and share infor-
apartment in Morgan County. As a result          mation concerning an ongoing case against
of the explosion, Stephan Frederick was          White-Rodgers in Missouri, captioned as
killed, and his wife, Courtney, and two-year     Glascock v. State Industries (Glascock).
-old son, Samuel, were badly burned.             Glascock also involved a propane gas
Courtney’s two-year-old cousin, Ciera            explosion and a water heater with a White-
Davis, was also badly burned along with her      Rodgers gas control valve.
uncle, Lonnie Kindle (collectively, “the                White-Rodgers opposed the motion
Plaintiffs”). The Plaintiffs filed a complaint   to compel because it had settled the
against White-Rodgers for strict products        Glascock case. The Plaintiffs then asked
liability and negligent design of a water        the trial court to compel White-Rodgers to
heater control that the Plaintiffs claimed       produce reports from experts with whom
caused the explosion.                            White-Rodgers had consulted before Glas-
        On October 27, 2008, the Plaintiffs      cock was settled.
filed a motion to compel discovery, asking              On February 9, 2009, the trial court
the trial court to issue an order, compelling    issued its Initial Order on the Plaintiffs’
COURT OF APPEALS OF INDIANA                                                                 Page 2

    White-Rodgers, et al. v. Kindle, et al.

                                              CASE SYNOPSIS
motion to compel, requiring White-Rodgers            Rodgers responded that under the Indiana
to produce its expert reports from the               Trial Rules, attorney’s fees cannot be sanc-
Glascock case. On February 17, 2009, White           tioned against a party who was substantially
-Rodgers requested that the trial court re-          justified in opposing a motion to compel
consider its decision, arguing that Glascock         discovery. White-Rodgers argued that it
had settled before White-Rodgers had desig-          had been substantially justified in opposing
nated any experts in that case.                      the Plaintiffs’ motion to compel discovery.
       On February 25, 2009, the trial court         The trial court concluded that White-
issued an Amended Order, limiting what               Rodgers had violated the Amended Order
White-Rodgers was required to produce.               and ordered White-Rodgers to pay
Specifically, the Amended Order stated that          “reasonable fees incurred in drafting and
“White-Rodgers shall be relieved of an               filing the Motion for Sanctions and appear-
obligation to produce written materials pro-         ance to do so.”
vided to counsel and for counsel’s use from                  On May 7, 2009, the trial court
experts retained solely for consulting               entered an order awarding the Plaintiffs
purposes.” On March 2, 2009, counsel for             $18,187 in attorneys’ fees (Fee Order).
White-Rodgers corresponded with the                  White-Rodgers never produced any of its
Plaintiffs’ counsel, explaining that White-          files from the experts with whom it con-
Rodgers had not designated any experts in            sulted in the Glascock case. White-Rodgers
Glascock and, therefore, had no expert re-           seeks this interlocutory appeal challenging
ports to produce under the Amended Order.            the Sanctions Order as well as the Initial
       On March 6, 2009, the Plaintiffs filed        Order and the Amended Order that
a motion for sanctions against White-                preceded the Sanctions Order.
Rodgers, arguing that White-Rodgers had
experts in Glascock that were not protected          Arguments
from discovery. On March 13, 2009, White-                    White-Rodgers argues that it should
Rodgers responded that the “experts” that            not have been sanctioned because its oppo-
the Plaintiffs referred to were only consult-        sition to the Plaintiffs’ motion to compel
ants and that the Amended Order did not              seeking the Glascock materials was substan-
require it to produce communications and             tially justified and under Indiana Trial Rule
reports from consultants.                            37, a party may not be sanctioned if its
       On April 9, 2009, the trial court             opposition was substantially justified. In
issued a Sanctions Order, stating that White         support of its argument, White-Rodgers
-Rodgers had not showed that the experts in          points out that in the Amended Order and
Glascock were only consultants. The trial            the Sanctions Order, the trial court limited
court ordered White-Rodgers to produce its           what White-Rodgers was required to
expert reports but stated that it “may               produce. Additionally, White-Rodgers high-
[remove] trial strategy/litigation advice            lights the fact it had not designated any
from the produced materials.”                        experts in Glascock, instead retaining only
       On April 24, 2009, the Plaintiffs             consultants from whom White-Rodgers
submitted a petition to the trial court asking       sought advice. White-Rodgers directs the
for $18,187 in attorneys’ fees.        White-        court to Indiana caselaw distinguishing
COURT OF APPEALS OF INDIANA                                                                  Page 3

    White-Rodgers, et al. v. Kindle, et al.

                                              CASE SYNOPSIS
between designated and nondesignated                 Glossary:
experts.                                             Caselaw: A collection of cases that form the
       The Plaintiffs counter that White-            body of law in the given jurisdiction.
Rodgers was not substantially justified in
opposing their motion to compel because              Discovery: Forced disclosure, at a party’s
under Indiana caselaw, White-Rodgers was             request, of certain information relating to
required to produce documents from con-              the case.
sulting experts once Glascock had been
settled. Additionally, the Plaintiffs claim          Experts: A person who through education
that the sanctions award should be viewed            or experience possesses knowledge on a
in the larger context of White-Rodgers’s             particular subject. They are used to assist
history throughout the case of opposing the          the judge or jury in understanding the issues
Plaintiffs’ requests for discovery. Finally,         in a case.
the Plaintiffs contend that the Amended                     -Consulting/nontestifying: An expert
Order and the Sanctions Order did not limit                 who is retained by a party, but who is
what White-Rodgers was required to                          not expected to be called to testify at
produce, but instead only clarified what it                 trial.
was required to produce.                                    -Testifying:    An expert who is
       White-Rodgers also challenges the                    expected to testify at trial. They are
Initial Order and the Amended Order that                    disclosed by the hiring party as a
underlie the imposed sanctions. White-                      potential witness.
Rodgers claims that the Initial and
Amended Orders are erroneous because its             Interlocutory Appeal: An appeal that is
expert consultants from Glascock are pro-            taken before the case reaches final judg-
tected from discovery by the Plaintiffs even         ment.     Usually before a case can be
though Glascock settled. Indiana Trial Rule          appealed, it has to reach final judgment;
26 prohibits discovery of nontestifying              however, there are limited exceptions to this
experts. The policy behind this rule is to           rule. Here, White-Rodgers was able to
prevent a party from building his own case           appeal before final judgment because the
by taking advantage of the financial                 Sanctions Order required it to pay money.
resources that his opponent has used in
preparation. White-Rodgers argues that               Motion to Compel Discovery: A party’s
this protection extends to future cases. The         request that the court force the opposing
Plaintiffs counter that Rule 26 does not             party to produce and/or respond to the
protect nontestifying experts from discovery         party’s discovery requests.
once the case for which the expert was hired
has settled. The Plaintiffs contend that this        Sanction: A penalty that results from a fail-
makes sense because a party makes no new             ure to comply with an order. In this case, a
investment in expert materials acquired              discovery order.
during a previous case once that case is
over.
White-Rodgers, et al. v. Kindle, et al.                                          Page 4

TODAY’S PANEL OF JUDGES

                   HON. JOHN G. BAKER (MONROE COUNTY),
                          CHIEF JUDGE PRESIDING
                     Judge of the Court of Appeals since June 1989

          John G. Baker is originally        Judicial College, Indiana Continuing
   from Aurora in Dearborn County and        Legal Education Forum, and the
   lived in Monroe County for 35 years.      National Institute of Trial Advocacy.
   Since June 1989, he has served as a
   Judge of the Indiana Court of Appeals           His professional associations
   representing the First District, and      include the American, Indiana State,
   has authored more than 3,000 major-       Monroe County and Indianapolis Bar
   ity opinions. Prior to becoming an        Associations. For the latter, he served
   appellate court judge, he served as       as Vice-President in 1995. He has
   county court and superior court judge     been a member of the Indiana Judges
   for 13½ years in Bloomington, dispos-     Association's Board of Managers
   ing of more than 15,000 cases.            continually since 1979 and served as
                                             its President from January of 1987
          Judge Baker graduated from         through June of 1989.
   Culver Military Academy and received
   his A.B. degree from Indiana Univer-           Judge Baker has been active in
   sity in 1968 in History and his J.D.      community and civic affairs as well.
   from the Indiana University School        In addition to his church, YMCA, and
   of Law — Bloomington in 1971. He          other similar organizations, Judge
   received his LLM in Judicial Process      Baker has been active in Boy Scouts of
   from the University of Virginia in        America since his youth and was
   1995.     Before assuming the trial       awarded the rank of Eagle Scout.
   bench, he was a partner in the firm of
   Baker, Barnhart, and Andrews in                 Judge Baker was retained on the
   Bloomington and was a Captain in the      Court by election in 1992 and 2002.
   U.S. Army Reserves.                       He and his wife have five children
                                             and, so far, six grandchildren.
         Since 1980, Judge Baker has
   taught as an adjunct professor at
   Indiana University's School of Public
   and Environmental Affairs, and since
   2004 at the School of Law in Indian-
   apolis. In addition, Judge Baker has
   served on the faculties of the Indiana
White-Rodgers, et al. v. Kindle, et al.                                         Page 5

TODAY’S PANEL OF JUDGES

            HON. EZRA H. FRIEDLANDER (HAMILTON COUNTY)
                   Judge of the Court of Appeals since January 1993

         Ezra H. Friedlander was             Foundation. He has previously been
   appointed to the Court of Appeals by      active in the American Bar Associa-
   Governor Evan Bayh in January 1993.       tion’s Judicial Division as well as
   A native of New Jersey, Judge Fried-      many other areas of the bar, including
   lander graduated from Indiana             the Indianapolis Bar Association and
   University in 1962 with a BA in His-      the Indianapolis Bar Foundation.
   tory and Government. He earned his
   law degree from Indiana University              Judge Friedlander stays actively
   School of Law in 1965.                    involved at his alma mater by serving
                                             on the Dean’s Advisory Board of the
         Judge Friedlander practiced law     College of Arts and Sciences, including
   for 27 years before being appointed to    as chairman of the Committee on Di-
   the bench. His practice was primarily     rectors. He also serves on the Board
   in the area of civil law, but he also     of Directors of the Indiana University
   served as a deputy prosecutor in Lake     Foundation, chairs its Committee on
   and Marion counties and as Corporate      Directors, and is a member of the
   Counsel to the Secretary of State.        Foundation’s Executive Committee.
                                             Judge Friedlander was honored by the
          Judge Friedlander was chair of     IU School of Law as a member of its
   the Indiana Supreme Court’s Commis-       Academy of Law Alumni Fellows.
   sion on Race and Gender Fairness. He
   is a member of the Indiana State and             Judge Friedlander also remains
   American Bar Associations; American       actively involved in community
   Judicature Society; the Indiana           efforts. He was a member of the local
   Judges Association; and the Indiana       organizing committee for the 2005
   Court of Appeals Communications           Solheim Cup; the 2002 World Basket-
   Committee. He is a graduate of New        ball Championships; and is a founder
   York University’s Appellate Judges        of the Carmel Youth Soccer Associa-
   Institute of Judicial Administration.     tion.
   Judge Friedlander is a past member of
   the Board of Directors of the Indiana            Judge Friedlander, who was
   State Bar Association and past chair of   retained on the Court of Appeals by
   the its Young Lawyers Section. He is      election in 1996, is married and has
   also a Fellow of the Indiana State Bar    two children.
White-Rodgers, et al. v. Kindle, et al.                                                 Page 6

TODAY’S PANEL OF JUDGES

                 HON. TERRY A. CRONE (ST. JOSEPH COUNTY)
                    Judge of the Court of Appeals since March 2004

          Terry A. Crone was appointed to            the Supreme Court Committee on Charac-
   the Court of Appeals March 8, 2004,               ter and Fitness and the Alternative
   representing the Third District. Judge            Dispute Resolution Committee of the
   Crone was raised in South Bend, and               Indiana Judicial Conference. Judge Crone
   graduated from DePauw University, cum             is currently a member of the St. Joseph
   laude in 1974 and from the University of          County, Indianapolis, Marion County,
   Notre Dame Law School in 1977.                    Indiana State and American Bar Associa-
                                                     tions. Judge Crone currently serves as
          Judge Crone practiced law in South         Chairman of the Indianapolis Bar
   Bend for nine years concentrating in areas        Association Bar Leader Series. He helped
   of civil practice and served as the St.           found a program in South Bend to expose
   Joseph County Attorney from 1981 to               minority high school to the law and
   1986. In 1986, Judge Crone was                    related fields; was a founding member of
   appointed Magistrate of the St. Joseph            the South Bend Commission on the Status
   Circuit Court where he served until his           of African-American Males and the St.
   appointment as Judge of the St. Joseph            Joseph County Coalition Against Drugs.
   Circuit Court in 1989.
                                                            Judge Crone is married and has
          Judge Crone is a past President of         three daughters.
   the St. Joseph Bar Association, a former
   Member of the Board of Managers of the
   Indiana Judge’s Association, a Member of


                                          “Appeals on Wheels”
       The Court of Appeals of Indiana hears oral argument at venues across the
       state to enable Hoosiers to learn about the judicial branch. This initiative
               began statewide just prior to the Court’s centennial in 2001.


      The Court of Appeals of Indiana                  Sites for traveling oral arguments
      has held over 250 "on the road"                 are often law schools, colleges, high
          cases since early 2000.                      schools, and county courthouses.
White-Rodgers, et al. v. Kindle, et al.                                                   Page 7

ATTORNEYS FOR THE PARTIES
   For Appellant, White-Rodgers:
   Bryan H. Babb
   Bose McKinney & Evans LLP
   Indianapolis

        Bryan Babb is the C0-Chair of the         Academy at West Point (B.S. 1989), Bos-
   Appellate Group, and a member of the           ton University (M.S. 1994), and Indiana
   Litigation Group, assisting clients with a     University School of Law—Bloomington
   wide variety of complex commercial appel-      (J.D. cum laude, 1999). Prior to attending
   late and litigation matters. Mr. Babb also     law school, he served as a Captain in the
   chairs the firm’s Recruiting Committee,        Field Artillery with 1st Armored Division,
   and sits on the firm’s Diversity Committee.    U.S. Army, Europe. Before joining Bose,
   Mr. Babb has been the principal author of      Mr. Babb served as a judicial law clerk for
   numerous appellate and amicus briefs in        Indiana Supreme Court Justice Frank
   both state and federal appellate courts and    Sullivan, Jr.
   has argued before the Indiana Supreme               Outside of the office, Mr. Babb spends
   Court, the Indiana Court of Appeals, and       most of his free time with his wife, daugh-
   the U.S. Court of Appeal for the Seventh       ter, and twin sons. He also enjoys golfing,
   Circuit.                                       watching the Indianapolis Colts, and root-
        Mr. Babb is a graduate of Carmel High     ing for the Army football team.
   School (1984), the United States Military

   For Appellee, Kindle, et al.:
   David K. Herzog
   Baker & Daniels LLP
   Indianapolis

        David Herzog is the Chair of the firm’s   September 2000 to become Executive Vice
   Business Litigation Practice Group and         President, General Counsel and Secretary
   concentrates his practice in complex busi-     of Conseco, Inc., where he served until
   ness and commercial litigation. In recent      February 2003. He then returned to Baker
   years he has prosecuting and defending         & Daniels as a Partner.
   claims in the areas that include: contact           Mr. Herzog graduated from Wabash
   actions; business and securities fraud; cor-   College summa cum laude in 1977, and he
   porate governance disputes; class actions      received his J.D. from Vanderbilt Univer-
   under the securities laws, the Federal         sity in 1980. He is a member of the
   Truth-in-Lending Act, and varied con-          Indianapolis, Indiana State, Seventh Cir-
   sumer contracts; professional malpractice      cuit, and American Bar Associations.
   claims; bankruptcy litigation, including            Mr. Herzog’s civic activities include
   adversary proceedings; and shareholder,        serving as the Chair of the Board of
   partnership, and LLC disputes. From            Trustees for the Christian Theological
   January 1998 through August 2000, Mr.          Seminary and serving on the Board of
   Herzog was Managing Partner of the firm’s      Directors of the Indianapolis Legal Aid
   Indianapolis Office. He left the firm in       Society.

				
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