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.