609 N.E.2d 1191 (Ind.App. 1 Dist. 1993), 72A01-9112-CV-405, Lucas v. Dorsey Corp.

Docket Nº:72A01-9112-CV-405.
Citation:609 N.E.2d 1191
Party Name:Raymond L. LUCAS, Jr. and Theresa A. Lucas, Appellants-Plaintiffs, v. The DORSEY CORPORATION and Dorsey Trailers, Inc., Delphi Body Works (Inc.), Appellees-Defendants, Daro Ltd., and Gary W. Wilson and Darlene Wilson d/b/a Midwest Hydraulic, Defendants.
Case Date:March 10, 1993
Court:Court of Appeals of Indiana

Page 1191

609 N.E.2d 1191 (Ind.App. 1 Dist. 1993)

Raymond L. LUCAS, Jr. and Theresa A. Lucas, Appellants-Plaintiffs,

v.

The DORSEY CORPORATION and Dorsey Trailers, Inc., Delphi

Body Works (Inc.), Appellees-Defendants,

Daro Ltd., and Gary W. Wilson and Darlene Wilson d/b/a

Midwest Hydraulic, Defendants.

No. 72A01-9112-CV-405.

Court of Appeals of Indiana, First District.

March 10, 1993

Transfer Denied May 27, 1993.

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David W. Stone, IV, Stone Law Offices & Legal Research, Anderson, David W. Paugh, Montgomery, Elsner & Pardieck, Seymour, for appellants-plaintiffs.

James D. Witchger, Rocap, Witchger & Threlkeld, Indianapolis, for appellee-defendant Delphi Body Works, Inc.

Cory Brundage, Bette J. Dodd, Ice Miller Donadio & Ryan, Indianapolis, for appellees-defendants The Dorsey Corp. and Dorsey Trailers, Inc.

RATLIFF, Senior Judge.

STATEMENT OF THE CASE

Raymond L. Lucas, Jr. and Theresa A. Lucas (collectively "Lucas") appeal from summary judgment entered in favor of The Dorsey Corporation and Dorsey Trailers, Inc. ("Dorsey") and Delphi Body Works (Inc.) ("Delphi") in an action for personal injury damages suffered as the result of a large auger falling upon Raymond. We affirm in part, reverse in part, and remand.

ISSUES

We restate the issues on appeal as follows:

1. Did the trial court abuse its discretion in failing to strike the affidavit of Lucas's expert witness, when Lucas failed to comply promptly with Ind.Trial Rule 26's duty to update discovery responses?

2. Did the trial court err in granting Delphi's motion for summary judgment concluding that there was no material issue of fact regarding Lucas's negligence or product liability claims?

3. Did the trial court err in granting Dorsey's motion for summary judgment and concluding that as a matter of law Dorsey neither owed Lucas a duty nor was a "seller" within the purview of Indiana's Products Liability Statute? 1

FACTS

Indiana Bell solicited bids for the purchase of utility trucks equipped with digger derricks. Delphi's bid was ultimately successful. On January 11, 1979, Delphi ordered five (5) derricks manufactured by the Holan Division. The Holan derricks were to be placed on the utility trucks ordered by Indiana Bell. Daro Ltd. acquired the Holan Division from Ohio Brass Company. Daro, however, went into bankruptcy and Dorsey purchased the assets of the Holan Division in a sale which was approved by the bankruptcy court on July 12, 1979. Subsequently, Delphi received an invoice for the Holan derricks directing that payment be sent to Dorsey. Delphi received

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the Holan derricks on September 28, 1979. The Holan derricks were installed on the utility trucks Indiana Bell ordered.

Lucas was employed as a lineman with Indiana Bell. A lineman's duties include the installation of utility poles. To install a utility pole a lineman first digs the hole. After the hole is dug with the auger, which is located on the derrick unit, a cable is attached to the auger's neck. The operator of the derrick then rotates the auger which winds the cable around its neck and pulls the auger up to the boom. The boom contains two safety latches, a primary and secondary latch, to secure the auger once it is wound up against the cradle of the boom. The latches either can be opened automatically as the auger is raised into position or they can be opened manually. After the auger is in the boom cradle, the boom is lowered and a safety pin is inserted to secure the auger should the latches malfunction.

On July 17, 1984, Lucas and his partner were dispatched to an area outside Fairland, Indiana to repair a broken utility pole. They determined that further assistance was required and two more trucks were dispatched. A bucket truck was used to secure the telephone cables and the boom on Lucas's truck was used to remove the broken pole. The driver of the other utility truck, Cindy Page, used the Holan derrick to clean out the hole so a new pole could be installed. After the hole was dug out, Lucas was in the process of inserting a safety pin to complete securing the auger when the cable broke and the auger fell, striking him. Page was running the engine at about 1/3 of its speed when the cable broke. The Holan derrick was equipped with a dump valve as a safety feature which was to divert hydraulic fluid when the switch was activated by contact with the auger that was being raised. However, the dump valve has a slower reaction time when the engine is run at a higher rate of speed than when it is run at idle speed.

On November 26, 1985, Lucas filed a complaint, which was later amended. On January 14, 1991, Delphi filed its motion for summary judgment in which Dorsey joined. The trial court granted Dorsey's motion for summary judgment on September 23, 1991. On the same day the court set an additional hearing on Delphi's motion. On November 7, 1991, Delphi's summary judgment was also granted. Lucas filed a motion to correct error which was denied. Lucas now appeals. Dorsey and Delphi cross-appeal.

DISCUSSION AND DECISION

Issue One

Dorsey and Delphi contend the trial court abused its discretion in failing to strike the affidavit of Lucas's expert witness, John M. Howard, when Lucas failed to comply promptly with the duty to update discovery responses imposed by T.R. 26. Prior to dealing specifically with the facts relating to this issue, we make some general observations concerning appellate review of a trial court's rulings on discovery issues. A trial court has broad discretion in ruling on issues of discovery and we will interfere only where an abuse of discretion is apparent. Keesling v. Baker & Daniels (1991), Ind.App., 571 N.E.2d 562, 566-68, trans. denied. To obtain reversal of a trial court's discovery order, the moving party must show prejudice. Coster v. Coster (1983), Ind.App., 452 N.E.2d 397, 400. Review of an exercise of judicial discretion must be made in view of the facts and the circumstances of the case. Fulton v. Van Slyke (1983), Ind.App., 447 N.E.2d 628, 636, trans. denied. With these general principles in mind, we turn to a consideration of the underlying facts and circumstances relevant to this issue.

Lucas filed his initial complaint in September of 1985. In early 1986, Delphi attempted to obtain the name, address, opinions, and conclusions of any expert witnesses. On April 4, 1986, Lucas responded in interrogatory answers that he had no expert as of that time. Record at 1525. On May 1, 1986, Lucas hired Howard, a human factors expert, as a "consultant." Record at 1692. As early as September 12, 1986, Lucas's answers to Delphi's interrogatories identified John Howard as an expert. However, Lucas did not supply the

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substance of Howard's expert opinion in these answers because Howard's evaluation of the vehicle was alleged to be continuing.

On March 8, 1990, Dorsey served three additional interrogatories on Lucas. One interrogatory specifically asked for Howard's expert opinion. From April to August of 1990, Lucas sought and obtained six enlargements of time to respond. Lucas finally provided Dorsey and Delphi with Howard's expert opinion in an affidavit twelve days prior to the consolidated hearing on the defendants' motions for summary judgment, held July 23, 1991.

We indeed are appalled by the delay in responding to the legitimate discovery requests of Delphi and Dorsey. Lucas's only explanation for his recalcitrance is that, although Howard was employed by him in early 1986, he had not received Howard's conclusions. Lucas's answers to Delphi's interrogatories disclose that Howard examined the vehicle as early as 1986. Lucas's counsel explained that the nearly five year delay in providing Delphi and Dorsey with Howard's expert opinion was a result of counsel's own inability to get his expert "up to date" and himself "up to speed" in this case until after a motion for summary judgment had been filed. This is hardly the degree of diligence which the Trial Rules envision.

Discovery under our trial rules is designed to be self-executing with little, if any, supervision by the trial court. Chrysler Corp. v. Reeves (1980), Ind.App., 404 N.E.2d 1147, 1151, trans. denied. Delphi and Dorsey served Lucas with three sets of interrogatories regarding Lucas's expert witness before Lucas provided Delphi and Dorsey with Howard's opinions and conclusions. Neither repetitive interrogatories nor motions to compel are required where the trial rules impose an affirmative duty to supplement a discovery request and to provide the substance of an expert's testimony. Ind.Trial Rule 26(E)(1)(b); State v. Kuespert (1980) Ind.App., 411 N.E.2d 435, 437.

The duty seasonably to supplement a discovery response is absolute and is not predicated on a court order. Lewis v. Darce Towing Co. (W.D.La.1982), 94 F.R.D. 262, 266. It is a breach of a litigant's duty seasonably to supplement if the litigant postpones supplementing its response by not obtaining from its experts the information which is to be supplied in answer to interrogatories. Ferrara v. Balistreri & DiMaio, Inc. (D.Mass.1985), 105 F.R.D. 147, 150 (construing Fed.R.Civ.P. 26(e), which is virtually identical to Ind.Trial Rule 26(E)).

Given the foregoing pronouncements and considering what we view to be a serious lack of diligence on the part of Lucas's counsel, we nevertheless do not find reversible error. We note that rather than request a continuance to review the affidavit, Dorsey and Delphi moved to strike the affidavit. See Marathon Petroleum Co. v. Colonial Motel Properties, Inc. (1990), Ind.App., 550 N.E.2d 778, 781; see also City of Evansville v. Rieber (1979), 179 Ind.App. 256, 261, 385...

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