                                                     Nov 10 2014, 9:41 am


FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                    ATTORNEYS FOR APPELLEE,
                                            ArcelorMittal Indiana Harbor LLC:
JOHN C. TRIMBLE
A. RICHARD M. BLAIKLOCK                      JAMES B. GLENNON
CHARLES R. WHYBREW                           Foran Glennon Palandech Ponzi
JASON M. LEE                                 & Rudloff, P.C.
Lewis Wagner, LLP                            Chicago, Illinois
Indianapolis, Indiana
                                             JOHN E. HUGHES
                                             Hoeppner Wagner & Evans LLP
                                             Merrillville, Indiana

                                             KARL L. MULVANEY
                                             NANA QUAY-SMITH
                                             JESSICA WHELAN
                                             Bingham Greenebaum Doll LLP
                                             Indianapolis, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

WESCO DISTRIBUTION, INC.,                    )
                                             )
     Appellant- Defendant,                   )
                                             )
            vs.                              )    No. 45A03-1307-PL-274
                                             )
ARCELORMITTAL INDIANA                        )
HARBOR LLC, and ESPU, INC.,                  )
                                             )
     Appellees-Plaintiffs.                   )


                    APPEAL FROM THE LAKE SUPERIOR COURT
                       The Honorable John R. Pera, Special Judge
                            Cause No. 45D10-0802-PL-25



                                 November 10, 2014
                           OPINION - FOR PUBLICATION


ROBB, Judge


                               Case Summary and Issues

      On April 28, 2006, a ladle containing molten iron unexpectedly descended from its

hoisted position and tipped, causing molten iron to spill and ignite a fire which

extensively damaged the steel shop at a mill operated by ArcelorMittal Indiana Harbor

LLC (“ArcelorMittal”) in East Chicago, Indiana. ArcelorMittal determined that the

incident was caused when the braking system on the crane hoisting the ladle failed.

Specifically, ArcelorMittal determined that parts supplied by WESCO Distribution, Inc.

(“WESCO”) had fractured and led to the braking system failure. ArcelorMittal sued

WESCO for breach of implied warranties and breach of contract. After extensive pre-

trial proceedings and a twenty-two day trial, a jury found in favor of ArcelorMittal and

awarded damages in the amount of $36,134,477. The trial court subsequently awarded

ArcelorMittal prejudgment interest in excess of three million dollars on the amount it

expended to repair its facility and entered final judgment for ArcelorMittal and against

WESCO in the amount of $39,031,555.96.

      WESCO appeals the judgment, alleging several instances of reversible error:

              1. The trial court erroneously denied WESCO’s motion for
      summary judgment and motion for judgment on the evidence regarding
      ArcelorMittal’s expert testimony on causation, which WESCO vigorously
      contested as inadmissible and without which it claims there is no evidence
      that its alleged breach was the cause of the spill;


                                           2
                2. The trial court erroneously failed to sanction ArcelorMittal for
         destruction of certain evidence WESCO claims was critical to its defense;
                3. The trial court erroneously admitted ArcelorMittal’s expert
         testimony on product identification, without which it claims there is no
         evidence that both contactors on the crane were supplied by WESCO;
                4. The trial court erroneously denied WESCO’s motion for
         summary judgment and motion for directed verdict because as a matter of
         law the “freak convergence of events” leading to the incident was not
         foreseeable and the fractured parts were not the proximate cause of the
         event;
                5. The trial court erroneously prevented WESCO from admitting
         evidence of subsequent remedial measures taken by ArcelorMittal.

WESCO also contends the trial court abused its discretion in:

                6. Ruling on a dispute regarding the discoverability of certain
         insurance investigation materials;
                7. Awarding prejudgment interest; and
                8. Instructing the jury regarding the measure of damages.

         We conclude WESCO has not shown that the trial court committed any reversible

errors or that the trial court abused its discretion in its handling of the discovery issue.

We also conclude, however, that the trial court did abuse its discretion in awarding

prejudgment interest to ArcelorMittal.                         Accordingly, we reverse the award of

prejudgment interest and remand for re-entry of the final judgment in an appropriate

amount. In all other respects, the trial court is affirmed.

                                        Facts and Procedural History1

         ArcelorMittal operates a steel shop at its mill in East Chicago where molten iron is

transported in ladles from one end of the shop via an overhead crane to charge a basic


          1
            We heard oral argument in this case on August 26, 2014, in Indianapolis, Indiana. We commend counsel
on the quality of their presentations, especially in light of the lengthy and complicated factual and procedural history
of this case. We also extend our appreciation to the Appellant for submitting a CD containing electronic copies of
its brief, addendum to its brief, the transcript, and the twenty-two volume appendix, which greatly assisted our
consideration of this case.

                                                           3
oxygen furnace located at the other end of the shop. The crane rides on rails located near

the ceiling and travels over a crosswalk. The crane lifts a ladle and keeps it raised in a

standby position until the crane operator receives orders to charge the furnace with the

contents of the ladle. The hoist motors that raise or lower the ladle are controlled by a

main hoist controller in the cab of the crane. It is described as a joystick-type mechanism

such that moving the controller one way causes the ladle to hoist and moving it the other

way causes the ladle to lower. Placing the controller in the center or neutral position

causes the crane’s brakes to engage and hold the ladle in place. The crane has both

dynamic and mechanical brakes. When the controller is placed in neutral, dynamic

braking contactors (“contactors”) in the dynamic brake system slow the rotation of the

hoist motors by dissipating electrical currents through the contactors’ blowout coils.2

The mechanical brakes then engage to bring the load to a stop and hold it in place. An

auxiliary hook moves independently of but in concert with the ladle. When the ladle

reaches the furnace, the auxiliary hook is maneuvered into place to catch a “dump lug” on

the ladle and tip the ladle so its contents empty into the furnace.

       On April 28, 2006, Frank Verta was operating what is known as the east charging

crane and had raised a full ladle into a stationary position when it suddenly began

descending. Verta was unable to control the ladle’s descent with the controller. As the

ladle descended, it caught on the auxiliary hook that Verta had previously positioned

below the ladle and tipped, spilling the molten iron onto the floor of the shop and igniting

a fire that engulfed the command tower in the shop. Due to the extensive damage, the

       2
           The crane at issue has two Size 8 contactors, referred to as the north and south contactors.

                                                          4
facility was inoperable for approximately two weeks and then only partially operable for

approximately two more weeks.

       Within hours of the incident, Gerald Rutledge, area supervisor for the shop, and

two other ArcelorMittal employees inspected the crane and saw nothing wrong with the

mechanical brakes. They asked Verta to operate the crane as they inspected the dynamic

brakes, and saw a “flash” from the north contactor. Transcript at 3019. Upon looking

closer, they realized the blowout coil in that contactor was separated. They removed the

blowout coil, which came out in two pieces, and replaced it. They then asked Verta to

run the crane again and although the north contactor was working properly, Verta said the

crane was still not acting right. They turned their attention to the south contactor and

discovered that its blowout coil was also bad, so they replaced it as well. They then ran

the crane several times, and it worked normally.       They finished this inspection by

approximately noon on April 29, and Rutledge told Bruce Black, the shop manager, that

the contactors were “burned up” and they had found nothing else wrong with the crane.

Tr. at 3050.

       Rick Marwitz, who worked for the business administration department of central

maintenance for ArcelorMittal, was part of an in-house team that investigated the

incident for the plant beginning on Monday, May 1, 2006. As part of the investigation,

they looked at the main hoist controller and felt the side-to-side movement was “kind of

sloppy,” tr. at 3092, and Marwitz told Rutledge within four or five days of the incident

that the controller needed some work, tr. at 3093. He did not specifically tell Rutledge to

keep any parts that were replaced, though he did ask later to see them. While Rutledge

                                            5
was fixing the issue Marwitz referenced, he just “[t]ook all the guts out,” tr. at 3094, and

replaced everything in the controller. Rutledge had looked at the controller before it was

removed from the crane and again when it was in the shop to be rebuilt and saw nothing

out of the ordinary, but as far as he was concerned, they had already found the problem

so he was not looking closely. Rutledge said that Henry Pospychala, an ArcelorMittal

employee who helped rebuild the controller, thought all the parts from the controller

“looked so good . . ., he wanted to save them” because “he had a problem with throwing

stuff away . . . .” Tr. at 3158-59. But Rutledge threw away the cams, bearings, and

contacts because “if you don’t get rid of parts you change, that whole shop would be

overflowed [sic] with parts . . . .” Tr. at 3156. Neither Rutledge nor Pospychala testified

that they were told to save the parts. As part of his investigation, Marwitz tracked all of

the Size 8 contactors in the plant, both those currently on cranes and spares not in use.

He also reviewed the purchasing information for those contactors.             The in-plant

investigation did not reach a conclusive determination about the cause of the incident, but

Marwitz testified they did know “the blowout coils contributed to the crane not being

able to stop for two reasons. One, that’s their purpose to slow the load. Two, after they

were changed, the crane functioned normally.” Tr. at 3789-90.

       On May 4, 2006, the investigation was turned over to Engineering Design and

Testing (“EDT”), which had been retained by ArcelorMittal’s insurer. As part of EDT’s

investigation, it took measurements, conducted interviews, and simulated the incident on-

site in December 2006; and then fully reconstructed the incident at the plant in August

2007. When EDT bypassed first one and then both of the contactors and the blowout

                                             6
coils to disable the dynamic braking system during the reconstruction, the mechanical

brakes alone stopped the ladle from descending. EDT therefore determined the fractured

blowout coils could not have been the sole cause of the incident. Ultimately, EDT

determined that the cause of the ladle’s uncontrolled descent was a fracture of the

blowout coils in each of the crane’s two dynamic braking contactors coupled with an

unexpected electrical configuration within the main hoist controller.                            ArcelorMittal

further determined that it had purchased the contactors and the blowout coils within from

WESCO, a distributor of industrial supplies. ArcelorMittal had ordered four contactors

from WESCO in 2004; specifically, four “Hubbell DB Contactor NEMA Size 8.”

Appellant’s Appendix at 1412-13; see also id. at 1421-22. Hubbell Industrial Controls,

Inc. is a manufacturer of industrial parts. WESCO, however, obtained the contactors

from EPSU, Inc., a company that both manufactured and supplied industrial parts. Some

of the parts EPSU supplied were manufactured by EPSU, others were obtained from

other manufacturers. Some of the parts EPSU manufactured were reverse-engineered

from other manufacturers’ products. In this case, EPSU provided to WESCO which in

turn provided to ArcelorMittal “Hubbell-style” contactors which EPSU manufactured and

which contained an outdated blowout coil design3 instead of providing original, current

Hubbell contactors with Hubbell components. ArcelorMittal determined there were four

contactors purchased from WESCO in the plant at the time of the incident, two in spares

and two on the east charging crane.

        3
             Although the parties frequently reference a pre-2004 Hubbell design change to add a screw at a weld in
the blowout coil which the contactors supplied by WESCO did not have, this is primarily relevant to the products
liability claim which was not submitted to the jury.


                                                        7
        ArcelorMittal initiated this litigation in 2007. Among the extensive and lengthy

pre-trial proceedings and the multiple motions and objections filed and argued at trial, the

following are relevant to the issues on appeal:

        During discovery, WESCO requested ArcelorMittal produce certain insurance

investigator/adjuster documents. ArcelorMittal produced the claim file relating to the

loss, but redacted some of the documents produced and withheld other documents

altogether on the basis of work product and/or attorney-client privilege. On October 22,

2008, WESCO filed a motion to compel the production of the insurance documents in

full.   After briefing, argument, and multiple in camera reviews of the disputed

documents, the trial court, with limited exception, approved the redaction and

withholding of the documents.

        As related in the facts above, ArcelorMittal disposed of and/or altered certain parts

and equipment in the immediate aftermath of the incident. Specifically, WESCO notes

the internal components of the main hoist controller were discarded; the blowout coils

were found to be fractured only after the crane was operated after the incident; the

contactors continued in service after the fractured blowout coils were replaced; one

contactor was ultimately lost; and the crane’s braking systems were not preserved in the

condition they existed at the time of the incident. In addition, the parts and equipment

were not documented in the state they existed at the time of the incident. On June 12,

2012, WESCO filed a motion for sanctions due to spoliation of evidence, seeking

dismissal of the case because WESCO’s defense had been prejudiced by ArcelorMittal’s

actions. The trial court deferred ruling on the motion until trial, at the conclusion of

                                              8
which it denied the motion and declined to impose any sanctions on ArcelorMittal.

WESCO then requested that the jury be instructed that since ArcelorMittal failed to

produce that evidence, it may conclude the evidence was unfavorable to ArcelorMittal.

The trial court also declined to give the instruction.

       ArcelorMittal intended to offer the testimony of Dr. Timothy Jur and Glenn

Robinson, both of EDT, to show that a fracture of the blowout coils in both contactors

was the cause of the brake failure. On September 18, 2012, WESCO filed a motion for

summary judgment alleging, inter alia, that ArcelorMittal’s expert opinions on causation

were based upon assumptions that were not supported by the record and therefore did not

create a genuine issue of fact regarding whether the blowout coils were the proximate

cause of the accident.       The trial court apparently made no ruling on the summary

judgment motion.          On December 14, 2012, WESCO filed a motion to exclude

ArcelorMittal’s expert testimony alleging it was unreliable and therefore inadmissible

pursuant to Indiana Rule of Evidence 702. Following a hearing, the trial court denied the

motion to exclude.         WESCO again argued ArcelorMittal’s expert testimony was

unreliable in making a motion for judgment on the evidence at the conclusion of

ArcelorMittal’s case in chief and in making a motion for directed verdict, both of which

the trial court denied.

       WESCO’s motion for summary judgment, motion for judgment on the evidence,

and motion for directed verdict also included allegations that the convergence of events

leading to the ladle spill and ensuing fire were not foreseeable as a matter of law.



                                              9
WESCO did not prevail on any of those motions. WESCO then raised the foreseeability

issue in its motion to correct errors, which was also denied.

       In a motion in limine filed December 14, 2012, ArcelorMittal requested an order

prohibiting WESCO from “discussing, arguing, attempting to offer into evidence,

commenting or in any matter [sic] conveying in the presence of the jury” post-incident

remedial measures taken by ArcelorMittal, among other things. App. at 4016, 4025-27.

WESCO opposed this motion on several grounds, including that Evidence Rule 407

inures to the benefit of defendants; that even if it could be used by plaintiffs, the evidence

ArcelorMittal sought to exclude is admissible under that rule; and further, it is admissible

for another purpose under the rule. The trial court determined Rule 407 is “party neutral”

and ruled that evidence of subsequent remedial measures was not admissible. During

trial, WESCO argued ArcelorMittal had opened the door to evidence of a policy change

by ArcelorMittal after the incident regarding where crane operators were to keep the

auxiliary hook relevant to the ladle. It also argued evidence regarding the installation of

safety features on the controller after the incident should be allowed. The trial court

declined to allow the evidence.

       During trial, ArcelorMittal offered the testimony of its expert Dr. Jur regarding the

source of the blowout coils. WESCO objected because “this is not an area of expert

testimony. It’s also cumulative of testimony that’s already been offered in this case.

Pursuant to 7-0-2, it is clearly not within the scope of expert testimony.” Tr. at 4239.

The trial court ultimately allowed Dr. Jur’s testimony, finding that his review of the

purchasing and tracking documentation gave him specialized knowledge about the source

                                             10
of the blowout coils. WESCO raised this issue again in its motion for judgment on the

evidence and in its motion for directed verdict. The trial court denied both motions.

        A jury trial was held from January 14, 2013 to February 14, 2013. The claims

submitted to the jury were ArcelorMittal’s claims against WESCO for breach of implied

warranties and breach of contract.4 The parties argued at the instruction conference about

which instruction with regard to the measure of damages for personal property should be

given to the jury. ArcelorMittal advocated an instruction identifying the measure of

damages for damaged personal property as the cost of repair, whereas WESCO advocated

an instruction identifying the measure of damages for destroyed personal property being

its fair market value. Ultimately, the trial court instructed the jury on both standards.

WESCO also tendered a “responsible cause” instruction that was given to the jury as a

final instruction:

            Sometimes an unrelated event breaks the connection between a
        defendant’s breach of contract or warranty and the injury a plaintiff claims
        to have suffered. If this event was not reasonably foreseeable, it is an
        “intervening cause.”
            When an intervening cause breaks the connection between a defendant’s
        breach of contract or warranty and a plaintiff’s injury, a defendant’s breach
        of contract or warranty is no longer a “responsible cause” of that plaintiff's
        injury.

App. at 4880.

        ArcelorMittal requested damages in the amount of $46,301,777. The jury returned

a verdict for ArcelorMittal and against WESCO, awarding damages in the sum of

$36,134,477. Following the jury’s verdict in its favor and the trial court’s entry of

        4
            ArcelorMittal also asserted claims against Hubbell and ESPU. These claims were not part of the trial and
are not at issue here.

                                                        11
judgment, ArcelorMittal filed a motion seeking prejudgment interest, claiming it was

entitled thereto because the contracts between the parties made ArcelorMittal’s claims

ascertainable. The trial court granted ArcelorMittal’s motion in part:

       [ArcelorMittal] is awarded prejudgment interest at the rate of six percent
       (6%) per annum from November 21, 2007, the date of filing of
       [ArcelorMittal’s] Complaint, to February 14, 2013, the date of the jury’s
       verdict, on $12,410,777, the amount [ArcelorMittal] claimed to have
       expended to repair its facility following the event described in the
       Complaint. The remainder of [ArcelorMittal’s] Motion for Prejudgment
       Interest as well as its request for attorneys’ fees is DENIED.

App. at 93. The trial court entered a final judgment dated July 6, 2013:

               IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
       that Plaintiff ArcelorMittal be and herby is awarded Final Judgment in the
       total amount of $38,031,555.96, comprised of (1) the $36,134,477 jury
       verdict reduced by $1,000,000 as a result of the Acknowledgement of
       Partial Satisfaction of Judgment filed on April 11, 2013 which partially
       satisfied the judgment and reduced the amount of judgment remaining
       unsatisfied to $35,134,477, (2) prejudgment interest in the amount of
       $3,896,643.96, and (3) costs in the amount of $435.00. . . .

App. at 94.

       WESCO now appeals the judgment.

                                 Discussion and Decision

                                  I. Causation Evidence

       The elements of a breach of contract claim are the existence of a contract, the

defendant’s breach, and damages to the plaintiff. Fowler v. Campbell, 612 N.E.2d 596,

600 (Ind. Ct. App. 1993). In addition, the alleged breach by the defendant must be a

cause in fact of the plaintiff’s loss. Id. at 601. Where an injury arising from the breach

may have resulted from multiple causes, the test of causation is not whether the breach


                                            12
was the only cause, or whether other causes may have contributed, but whether the

breach was a substantial factor in bringing about the harm. Id. at 602. Where causation

is not within a lay person’s understanding, expert testimony is necessary.                                  Muncie

Indiana Transit Auth. v. Smith, 743 N.E.2d 1214, 1217 (Ind. Ct. App. 2001).

                           A. Admission of Expert Testimony, Generally

      The admissibility of expert testimony is guided by Indiana Evidence Rule 702

which provides:5

      (a) If scientific, technical, or other specialized knowledge will assist the
      trier of fact to understand the evidence or to determine a fact in issue, a
      witness qualified as an expert by knowledge, skill, experience, training, or
      education, may testify thereto in the form of an opinion or otherwise.
      (b) Expert scientific testimony is admissible only if the court is satisfied
      that the scientific principles upon which the expert testimony rests are
      reliable.

A witness must be qualified as an expert by his knowledge, skill, experience, training, or

education and must have sufficient skill in a particular area before he may offer opinions

in that area. Armstrong v. Cerestar USA, Inc., 775 N.E.2d 360, 366 (Ind. Ct. App. 2002),

trans. denied. The proponent of the expert testimony has the burden of establishing the

foundation and reliability of the scientific principles on which the testimony is based.

Hannan v. Pest Control Servs., Inc., 734 N.E.2d 674, 679 (Ind. Ct. App. 2000), trans.

denied. The trial court acts as a gatekeeper by preliminarily assessing whether the

reasoning or methodology underlying the testimony is scientifically valid and can

properly be applied to the facts in issue and by ensuring the testimony both rests on a

reliable foundation and is relevant. Armstrong, 775 N.E.2d at 366. In other words, the

      5
          The evidence rules cited herein are the versions of the rules in effect when the trial was held in 2013.

                                                         13
trial court is to control the admission of proffered expert testimony rather than admitting

what is offered and leaving it to the jury to determine the weight of the testimony.

Norfolk S. Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 101 (Ind. Ct. App. 2005), trans.

denied.

       Expert testimony admitted under Rule 702 requires more than subjective belief or

unsupported speculation. Armstrong, 775 N.E.2d at 366. It “must be supported by

appropriate validation or ‘good grounds’ based on what is known . . . .” Lytle v. Ford

Motor Co., 814 N.E.2d 301, 309 (Ind. Ct. App. 2004), trans. denied. WESCO argued in

its pre-trial motion for summary judgment, at trial when the expert testimony was

offered, and in a motion for judgment on the evidence that ArcelorMittal’s expert

testimony regarding causation was inadmissible and therefore there was no evidence

supporting the blowout coils as a cause of the brake failure.

                                  B. Summary Judgment

       WESCO contends ArcelorMittal did not designate in its response to summary

judgment sufficient admissible evidence to raise a genuine issue of material fact as to

causation and therefore, the trial court should have granted summary judgment in favor of

WESCO. Preliminarily, ArcelorMittal contends that the only ruling subject to appellate

review is the admission of the expert testimony at trial over objection because the trial

court never ruled on the motion for summary judgment and WESCO did not object to the

failure to rule before going to trial. See Brief of Appellee at 37 n.10.    Although it is

unclear why the motion was never ruled on, it is clear that the motion was denied, even if

only by implication, and the denial of a motion for summary judgment is reviewable on

                                            14
appeal even following a trial on the merits. Keith v. Mendus, 661 N.E.2d 26, 35 (Ind. Ct.

App. 1996), trans. denied.

      When reviewing the denial of a summary judgment motion, we apply the same

standard as the trial court: summary judgment is appropriate only where the evidence

shows there is no genuine issue of material fact and the moving party is entitled to a

judgment as a matter of law. Ind. Trial Rule 56(C); West v. City of Princeton, 901

N.E.2d 1141, 1143 (Ind. Ct. App. 2009), trans. denied.        We construe all facts and

reasonable inferences drawn from those facts in favor of the nonmoving party. West, 901

N.E.2d at 1143. To prevail on a motion for summary judgment, the moving party must

demonstrate that the undisputed material facts negate at least one element of the other

party’s claim. Id. Once the moving party has met this burden with a prima facie

showing, the burden shifts to the nonmoving party to establish that a genuine issue of

material fact does in fact exist. Id. WESCO, as the party appealing the denial of

summary judgment, bears the burden of persuading us that the trial court erred. Id.

      EDT’s report about the cause of the incident, designated by WESCO in support of

its motion for summary judgment, states:

             It has been determined from the reconstruction of the incident that
      the ladle with a full load of molten pig iron and being hoisted by the east
      charging crane descended out of control as a result of the brakes on the
      crane not having engaged as intended by the hoist control system when the
      hoist controller was placed into the neutral position by the crane operator.
      For the brakes to not have been engaged, there had to have been a condition
      in the hoist control system that came into play as the crane operator was
      bridging west and as the operator was adjusting the hoisted position of the
      ladle by moving the hoist control to a lowering position and then back to
      neutral.


                                           15
              The condition in the control system consisted of three contributors: a
       fractured blowout coil in a Hubbell-type Size 8 dynamic braking contactor
       in the west hoist motor circuit, a fractured blowout coil in a Hubbell-type
       Size 8 dynamic braking contactor in the east hoist motor circuit, and a loose
       switch in the hoist controller in the operator’s cab of the crane.

App. at 2773 (emphasis added). Designated portions of the deposition testimony of Dr.

Jur and Robinson, both of whom contributed to the report, are consistent with and

provide details regarding their conclusions. WESCO’s motion for summary judgment

alleged that this theory of causation is based upon the assumptions that Verta was

lowering the hoist immediately prior to the incident—which it claims is contradicted by

the designated evidence—and that there were loose screws in the controller—which it

claims is unsupported by the designated evidence.

       WESCO asserts the opinions are inadmissible under Rule 702 to prove causation,

there was no other evidence of causation, and it was entitled to judgment as a matter of

law. Rule 702 “was designed to control the use of expert opinion testimony at trial.”

Doe v. Shults-Lewis Child and Family Servs., Inc., 718 N.E.2d 738, 750 (Ind. 1999)

(emphasis added).      Nonetheless, where expert testimony is advanced to establish

causation, summary judgment is proper in favor of the defendant where the testimony

fails to meet the requirements of Rule 702. Lytle, 814 N.E.2d at 308. There must be

some evidence other than the opinion itself that supports the theory. See Estate of Dyer

v. Doyle, 870 N.E.2d 573, 580-81 (Ind. Ct. App. 2007) (defendant’s expert’s testimony

about the “faked left syndrome” was unsupported by the physical evidence or testimony

and trial court abused its discretion in admitting it), trans. denied.



                                              16
        As for Verta’s actions, it appears undisputed at the summary judgment stage that

Verta never specifically said he lowered the hoist control before returning it to neutral

immediately before the ladle began its descent. His deposition testimony was:

        I was—I was set up by the east of the walkway, waited for the furnace
        operator to charge No.2 furnace, and my control was centered. It was in
        neutral. And all—he say [sic] okay, we’re going to charge the furnace. And
        as soon as I start to move, bridge west, I see that my ladle started going
        down by itself, and my control, it was on neutral. I grabbed the controls, my
        main hoist controls, I want all the way open to go up. I figure the ladle is
        going to go up.

App. at 2913. When he picked up the controls, “[i]t was center . . . . I look at it. It was

right in front of me.” Id. Other ArcelorMittal crane operators testified in depositions that

they would lower the hoist after getting the order to charge the furnace in order for the

ladle to be in alignment with the furnace.6 See, e.g., App. at 3054-55 (testimony of

Marion Daugherty that he would wait with the ladle hoisted until getting the command to

charge the furnace, then “I would go over the walkway, then when I got on the other side

of the walkway, I would lower the main hoist . . . down to the position where I can pour it

into the furnace. . . . [I]f you didn’t lower it down and you went to pour in the furnace,

you’d be too high.”); App. at 3057 (testimony of Kevin McCabe that upon passing the

crosswalk, the elevation of the ladle had to be adjusted).

        As for the loose screws, Rutledge testified at his deposition that although he

visually inspected the controller when he gutted the components and replaced them all, he

could not say for certain that all the switches were free and did not stick. App. at 3122.


        6
            Simplistically, the ladle is picked up at one end of the plant, carried the length of the plant which is
bisected by a crosswalk over which the ladle must be lifted, and then maneuvered into position to pour into the
furnace at the other end of the plant.

                                                        17
Pospychala averred in an affidavit designated on summary judgment that in the four years

he worked at the plant prior to the incident, “[s]crews on many components of the east

charging crane and other equipment . . . loosen over time. In the course of performing

preventative maintenance . . . inside the east charging crane main hoist controller . . . on

occasion I have found some of those screws to be loose, anywhere up to a couple of

turns.” App. at 3136.

       The support at the summary judgment stage for the expert opinion was based more

upon negative inferences—i.e., Verta said when the ladle began its descent the controller

was in neutral, but he did not specifically deny lowering the hoist just before the ladle

began to descend; Rutledge did not see any loose screws in the controller but could not

say that there were not any—than positive, direct evidence.         However, other crane

operators testified to the need to adjust the elevation of the ladle in the situation Verta

was in and Pospychala averred he had found loose screws in controllers on other

occasions. Construing all reasonable inferences in favor of ArcelorMittal as the non-

movant, the expert opinion is based upon assumed facts that are supported by the

designated evidence and at least raises a genuine issue of material fact as to whether the

blowout coils were a substantial factor in causing the incident. WESCO has not met its

burden of persuading us that the trial court erred in failing to grant summary judgment for

WESCO.

                                         C. Trial

       WESCO also claims the trial court erred in denying its motion for judgment on the

evidence regarding this issue based upon the expert testimony adduced at trial.

                                            18
       We review a ruling on a motion for judgment on the evidence using the same

standard governing the trial court in making its decision: judgment on the evidence is

proper only where all or some of the issues are not supported by sufficient evidence.

Weinberger v. Gill, 983 N.E.2d 1158, 1162 (Ind. Ct. App. 2013). The court looks only to

the evidence and the reasonable inferences drawn most favorable to the nonmoving party,

and the motion should be granted only where there is no substantial evidence supporting

an essential issue in the case. Id.

       Essentially, WESCO argues there was not sufficient evidence on the issue of

causation because the expert testimony was inadmissible to prove causation. To this end,

WESCO objected to ArcelorMittal’s expert testimony at trial. All evidentiary rulings,

including those regarding the admissibility of expert testimony, lie within the trial court’s

discretion. Armstrong, 775 N.E.2d at 365. We reverse only if the trial court abused that

discretion by making a decision clearly against the facts and circumstances before it or

the reasonable, probable, and actual inferences and deductions drawn therefrom.

Hannan, 734 N.E.2d at 679. Additionally, a trial court’s decision to admit or exclude

evidence will not be reversed unless prejudicial error is clearly shown. Franciose v.

Jones, 907 N.E.2d 139, 144 (Ind. Ct. App. 2009), trans. denied. Once the trial court is

satisfied that an expert’s testimony will assist the trier of fact and that the general

methodology is reliable, “then the accuracy, consistency, and credibility of the expert’s

opinions may properly be left to vigorous cross-examination, presentation of contrary

evidence, argument of counsel, and resolution by the trier of fact.” Sears Roebuck & Co.

v. Manuilov, 742 N.E.2d 453, 461 (Ind. 2001).

                                             19
        To prove the blowout coils were the cause of the incident, ArcelorMittal offered at

trial the expert testimony of Robinson and Dr. Jur. Robinson is an electrical engineer and

Dr. Jur is a mechanical engineer with EDT, the business of which is consulting “in

matters involving loss or damage . . . to figure out why it happened and the individuals

involved in it.” Tr. at 3987. Robinson described the incident reconstruction performed

by EDT in August 2007, as a result of which they concluded that “something, some

unknown factor in the control system had come to [sic] play in the original incident, other

than the broken blowout coils of which we were aware at the time.” Tr. at 4574-75.

Because of that, Robinson was asked to examine the electrical circuit for the crane’s

control system. Although the mechanical brakes should have been closed or engaged

when the controller was in neutral, as it was when the ladle began descending, Robinson

determined the mechanical brakes were open or disengaged during the descent. “So it’s

clear that to start the whole chain of events going, [Verta] had to have put the controller

into a lowering position . . . .” Tr. at 4597. After conducting an analysis of the circuitry

within an exemplar controller,7 Robinson concluded “that in addition to the broken

blowout coils, that there had to be a problem in the controller that resulted in both the

11L and the 21L contactors to close.”                  Tr. at 4605.        Both of those contactors are

controlled by the C5 switch, “[s]o that had to be the component that was malfunctioning.”




        7
            Because the components of the original controller had been replaced and discarded, WESCO also claims
this exemplar was not sufficiently similar to the original to support the testimony arising from its use. However,
WESCO did not object to the exemplar or to the testimony about it and the differences were explored with Robinson
during his testimony.

                                                       20
Tr. at 4606. Asked to state the opinion he reached as a result of his investigation into the

events that resulted in the incident, Robinson testified:

              First of all, it is my opinion that the operator put the crane into a
       lowering position and then returned the control to neutral and, at that point,
       the uncontrolled descent began.
              Secondly, it is my opinion that the uncontrolled descent was due to
       the malfunction of three components consisting of the two fractured
       blowout coils and the switch—the C5 switch in the controller.

Tr. at 4619.   On cross-examination, Robinson agreed that his opinion relied on certain

assumptions or deductions he made, including that the operator had put the controller into

a lowering position and that the two screws holding the C5 switch were loose.

       Dr. Jur testified similarly, that if the blowout coils are fractured and the C5 switch

in the controller is loose, when the operator puts the controller in neutral, “there’s no

braking at all . . . . So [the ladle’s] going to come down at a fast pace and that was the

explanation of this case. That was the – that was the circumstances that, we figured out

resulted in that fall.” Tr. at 4214-15. He also testified that based on the condition of the

blowout coils following their removal from the contactor, they had been fractured for

some time. Tr. at 4028.

       WESCO vigorously contended at trial and continues to contend on appeal that this

testimony and these opinions were inadmissible because there is no evidence to support

the two assumptions upon which they were based. WESCO contends Verta never told

anyone he had put the controller in lowering position before returning it to neutral prior

to the descent, so the evidence directly contradicts the assumption that he had done so.

Moreover, WESCO contends that if loose screws were “occasionally” found in a


                                             21
controller, more often than not they were tight. Further, WESCO contends there is no

evidence that they were loose at the time of the incident, as no one testified they saw

loose screws when the controller was repaired after the incident.

       Verta testified at trial in general regarding his experience operating the crane that

after passing the bridge, “we start to bring the ladles down. . . . [by] us[ing] the main

hoist controls . . . [for] a few seconds, to make sure I am level with the furnace.” Tr. at

1983-84. When asked if that was his habit or practice when operating the crane, Verta

replied it was and that he could not think of any times when he did not follow that habit.

Tr. at 1985. With regard to Verta’s testimony and his actions during the ladle’s descent,

WESCO’s expert, Charles Landy, noted that in order for EDT’s theory of causation to

work, the crane had to be lowering, not raising. He noted that in his investigation, he did

not see any evidence to substantiate the assumption that Verta lowered the controller, but

also did not uncover any evidence that contradicted it. Tr. at 6402.

       ArcelorMittal plant employees, including Pospychala, occasionally found loose

screws in their regular maintenance of the controller. Pospychala testified that it was

hard to see the screws because of the configuration of the crane cab, but “we pull the

cover off and we try and see as best we can the tips. And then feel our way down and

there’s screws in there that hold the tips to the main structure, and we give them—we

give them a turn now and then to make sure they’re not falling out or anything . . . .” Tr.

at 3222. Assuming from this there could be loose screws that impacted the switches in

the controller, Robinson conducted a test on an exemplar controller.              The results

explained all of the observations of the parties during and after the incident.

                                             22
       We cannot say the trial court abused its discretion in admitting this evidence,

because it was helpful in explaining to the jury how the incident could have happened

and the engineering methodology behind the opinions was reliable. The consistency of

the opinions with the entirety of the testimony was for the jury to decide. Even if the trial

court had erred, however, WESCO must show prejudice in order for any error in

admitting evidence to be reversible. Although the full picture of the cause of the incident

was complicated and required mechanical and electrical engineering assessments of the

entire braking system, there was additional evidence which could have led the jury to find

the blowout coils were a substantial factor in causing the incident. After an initial

inspection of the crane revealed nothing visibly wrong, ArcelorMittal personnel operated

the crane and replicated the incident: a full ladle descended even when the controller was

in neutral. ArcelorMittal personnel then inspected the contactors and discovered the

blowout coils in both were fractured. After both blowout coils were replaced and with no

other repairs, the crane held a full ladle properly. Although subsequent testing showed

the incident was caused by the two fractured blowout coils plus the faulty switch, there

was evidence independent of the expert testimony that the blowout coils contributed to

the incident. A motion for judgment on the evidence should be granted only when there

is insufficient evidence supporting an issue.      Because there was sufficient evidence

supporting the causation issue even in the absence of the expert testimony, the trial court

did not commit reversible error in denying WESCO’s motion for judgment on the

evidence.



                                             23
                                II. Spoliation of Evidence

       WESCO claims it was denied a fair trial because the trial court did not sanction

ArcelorMittal for failing to preserve or document critical components of the crane’s

braking system, leaving WESCO unable to inspect those components in preparing its

defense.   WESCO claims this issue raises “important public policy considerations

regarding a sophisticated party’s duty to preserve evidence, or at least warn a potentially

liable party before destroying evidence.” Brief of Appellant at 43. WESCO identifies

the following evidence it claims was critical but not preserved: 1) the intact controller in

use on April 28; 2) the condition of the dynamic braking contactors on April 28; 3) the

blowout coils while in place within the contactors on April 28; and 4) the condition of the

mechanical brakes on April 28. See Brief of Appellant at 44.

       When ArcelorMittal discovered the fractured blowout coils after its initial testing

of the crane, it took the blowout coils out of the contactors and preserved them. That

initial testing indicated to plant personnel that the blowout coils were the likely problem.

WESCO was able to inspect the blowout coils during its investigation and preparation.

However, ArcelorMittal did not photograph or otherwise document the blowout coils in

place within the contactors before removing them. The controller was disassembled after

the incident, and several internal components were replaced and discarded.              The

condition of the controller at the time of the incident was not documented. Additionally,

the condition of the contactors and the mechanical brakes at the time of the incident was

not documented. While the crane was down due to the incident, ArcelorMittal employees

performed routine periodic maintenance on the brakes.

                                            24
       Because WESCO was unable to examine these additional components, it sought

sanctions against ArcelorMittal.    The trial court ultimately declined to impose any

sanction due to the failure to preserve evidence and also declined to instruct the jury

regarding any inferences that could be made because of it. Significantly, WESCO was

free to question witnesses regarding the discarded or altered parts and was, as it

acknowledged at oral argument, able to argue to the jury regarding its inability to inspect

them in their original state and why that was important. See Tr. at 6993-94 (WESCO

stating in its closing argument, “[T]here’s no accident here, by anybody’s calculation,

without problems in the controller. That’s why all these things about the controller are so

important. . . . Those alleged two loose screws that were in the controller are part of the

whole guts of the thing that we know was pitched shortly after this incident. Who’s [sic]

controller was it? It wasn’t WESCO’s. It was the plant’s controller and the plant’s

responsibility to maintain it. Who pitched its parts? It wasn’t WESCO. It was the

plant.”).

       WESCO filed a motion for sanctions pursuant to Trial Rule 37 due to

ArcelorMittal’s spoliation of evidence from the crane. Trial Rule 37 provides a trial

court with the tools to enforce compliance with the discovery process. Pfaffenberger v.

Jackson Cnty. Reg’l Sewer Dist., 785 N.E.2d 1180, 1183 (Ind. Ct. App. 2003). The rule

provides that a trial court may impose sanctions, including dismissal, if a party fails to

comply with an order to compel discovery. Whitaker v. Becker, 960 N.E.2d 111, 115

(Ind. 2012). The determination of the appropriate sanction is left to the trial court’s

discretion, and we review only for an abuse of that discretion. Id. Although there is no

                                            25
apparent order to compel which WESCO seeks to enforce, it is undisputed that the

evidence at issue has been altered or otherwise disposed of and ArcelorMittal could not

produce it.8

        Before even reaching the issue of possible sanctions, there must first be a

determination that spoliation of evidence occurred.                       Spoliation of evidence is the

intentional destruction, mutilation, alteration, or concealment of evidence. Glotzbach v.

Froman, 854 N.E.2d 337, 338 (Ind. 2006) (quotation omitted). In Gribben v. Wal-Mart

Stores, Inc., our supreme court noted that “[c]ourts uniformly condemn spoliation.

‘[I]ntentional destruction of potential evidence in order to disrupt or defeat another

person’s right of recovery is highly improper and cannot be justified.’” 824 N.E.2d 349,

354 (Ind. 2005) (quoting Coleman v. Eddy Potash, Inc., 905 P.2d 185, 189 (N.M. 1995))

(emphasis added).

        As for sanctions if spoliation is found, our supreme court has noted that

        [p]otent responses . . . exist under Indiana Trial Rule 37(B) authorizing trial
        courts to respond to discovery violations with such sanctions “as are just”
        which may include, among others . . . dismissal of all or any part of an
        action . . . .

Id. at 351. In Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182 (Ind. 2011), our

supreme court quoted from a “widely cited opinion” about the factors weighing on the

appropriate sanction:

        8
             ArcelorMittal contends that WESCO’s acknowledgement that the trial court had discretion in ruling on
its motion for sanctions is a judicial admission precluding its argument on appeal that dismissal was warranted. “A
judicial admission is a formal stipulation that concedes any element of a claim or defense.” Luphahla v. Marion
Cnty. Sheriff’s Dep’t, 868 N.E.2d 1155, 1159 (Ind. Ct. App. 2007) (citation omitted). It relieves the opposing party
of the duty to present evidence of that claim or defense. Lystarczyk v. Smits, 435 N.E.2d 1011, 1014 (Ind. Ct. App.
1982). WESCO’s statement to the trial court that it had discretion in imposing sanctions is not an admission related
to a claim or defense. It is simply an acknowledgement of the law. It does not preclude WESCO from arguing the
trial court abused the discretion it had.

                                                        26
       Determining whether sanctions are warranted and, if so, what they should
       include, requires a court to consider both the spoliating party’s culpability
       and the level of prejudice to the party seeking discovery. Culpability can
       range along a continuum from destruction intended to make evidence
       unavailable in litigation to inadvertent loss of information for reasons
       unrelated to the litigation. Prejudice can range along a continuum from an
       inability to prove claims or defenses to little or no impact on the
       presentation of proof. A court’s response to the loss of evidence depends
       on both the degree of culpability and the extent of prejudice. Even if there
       is intentional destruction of potentially relevant evidence, if there is no
       prejudice to the opposing party, that influences the sanctions consequence.
       And even if there is an inadvertent loss of evidence but severe prejudice to
       the opposing party, that too will influence the appropriate response,
       recognizing that sanctions (as opposed to other remedial steps) require
       some degree of culpability.

Id. at 189-90 (quoting Rimkus Consulting Grp., Inc. v. Cammarata, 688 F.Supp.2d 598,

613 (S.D. Tex. 2010)). Further, “[i]t is well-established in Indiana law that intentional

first-party spoliation of evidence may be used to establish an inference that the spoliated

evidence was unfavorable to the party responsible.” Gribben, 824 N.E.2d at 351.

       Here, the trial court deferred ruling on WESCO’s pre-trial motion for sanctions

due to spoliation until after hearing all of the evidence.      At the conclusion of the

presentation of evidence, the trial court declined to impose any discovery sanctions upon

finding no intentional conduct by ArcelorMittal that amounted to spoliation. Although

the evidence was intentionally altered or discarded—in the sense that an ArcelorMittal

employee acted purposefully in rebuilding the controller and throwing the parts away—

the trial court specifically found that ArcelorMittal did not “intentionally destroy

evidence that they knew was evidence at the time they destroyed it.” Tr. at 6731-32

(emphasis added). The trial court ruled similarly with respect to WESCO’s proffered

adverse inference instruction: “I can’t say that [ArcelorMittal] knew, at the time these

                                            27
parts were discarded, that they would later become so important to a determination of this

case. . . .      There’s nothing in front of me to suggest that [ArcelorMittal] actively

suppressed evidence in this case.” Tr. at 6813. WESCO contends the trial court applied

the wrong standard in ruling on its motion for sanctions, repeatedly asserting at oral

argument that the trial court required a showing of “criminal intent” by ArcelorMittal.

Our review of the entirety of the trial court’s explanation for its rulings does not reveal it

imposed any such standard.9

         The trial court was “boots on the ground” for nearly six years of litigation and four

weeks of trial, during which it was able to evaluate the degree of ArcelorMittal’s

culpability and the extent of prejudice to WESCO, and it found no evidence that

ArcelorMittal destroyed the evidence for an improper purpose. Both parties’ witnesses

agreed it would have been better for their evaluation to have the additional evidence, and

without doubt, that is true.               See Tr. at 4644-45 (ArcelorMittal’s expert Robinson

testifying that it “[w]ould have been wonderful” to have the original controller and

without it, he was required to deduce “within a reasonable degree of engineering

certainty” that there were loose screws to explain the incident); Tr. at 6365-66

(WESCO’s expert Clifford Bigelow testifying that the only thing he wanted to do as part

of his investigation that he was unable to do was “look at the interior of the main hoist

controller that was installed in the crane at that time.”). But neither party was able to say

         9
            In discussions regarding WESCO’s proffered adverse inference instruction, the trial court did state,
“They picked [the controller] up, they rebuilt it and threw the parts away. That part, they intentionally threw the
parts away. But did [they] do it, for want of a better word, with criminal intent.” Tr. at 6798. However, the trial
court used that phrase once in the multiple and lengthy discussions about this issue and it is clear that the trial court
was simply trying to articulate the difference between the intent to discard something and the intent to spoliate
evidence.

                                                          28
conclusively what the lost evidence would have shown because ArcelorMittal disposed of

it before even it could inspect it.

       WESCO describes ArcelorMittal and its insurer as “sophisticated parties,” see

Brief of Appellant at 43, but the employees who worked on the crane in the immediate

aftermath of the accident—the first responders, so to speak—were not sophisticated

parties; they were crane operators and maintenance men who were primarily interested in

getting the plant back up and running as soon as possible. Once the blowout coils were

replaced and the crane was operating normally again, they believed the problem had been

found and fixed. As evidence of ArcelorMittal’s culpability with respect to the rebuilt

controller in particular, WESCO notes that the initial testing was done by ArcelorMittal

on April 29, and the blowout coils were removed that day. By May 1, ArcelorMittal

notified its insurer of the incident, and on May 2, an adjuster emailed ArcelorMittal,

stating, “It appears that your own investigation into the cause is well advanced–as you

mentioned it is important that as much evidence is retained as possible at this time . . . .”

App. at 752. By May 4, the adjuster and EDT were on site. Rutledge testified that he

disassembled the controller within four or five days of the incident, noting the crane was

still being inspected at that time.

       WESCO also asserts that ArcelorMittal had a policy of retaining evidence related

to plant incidents and that Pospychala wanted to keep the parts from the controller when

they were replaced because he knew of the policy but Rutledge threw them out anyway.

On cross-examination by WESCO, Marwitz testified:



                                             29
       Q: As a result of your inspection of the main hoist controller, you asked the
       maintenance people to replace it or rebuild it; is that right?
       A: Yes.
       Q: And they did that; correct?
       A: Yes.
       Q: They replaced the parts or the guts of the controller; correct?
       A: Yes.
       Q: Did you tell them to save the parts when they were doing that repair?
       A: I didn’t specifically look them in the eyes and tell them that, no.
       Q: In fact, you didn’t think you had to tell them to preserve the parts; did
       you?
       A: No, I didn’t.
       Q: You expected them to preserve the parts; didn’t you?
       A: Yes.
       Q: It’s general practice just to hold the parts that are removed for someone
       to look at; right?
       A: Yes.

Tr. at 3896-97. Rutledge testified Marwitz asked him to look into the controller “about

the fourth day” after the incident. Tr. at 3092. The fourth day after the incident would

have been approximately May 2, 2006.             At some point that day, the adjuster

communicated with someone at ArcelorMittal about the investigation and the need to

retain evidence, but there is no evidence that was communicated to the men on the floor.

Marwitz testified to a “general practice” to hold parts that were removed as part of an

investigation.   But he asked Rutledge to look at the controller not as part of the

investigation specifically but because he thought it was “sloppy” and could use some

work in general. Rutledge believed the blowout coils had been the problem, and so when

he fixed the controller, he cursorily inspected it but was not looking for anything specific

to the crane malfunction. Though WESCO believes that Pospychala retained the parts

because he knew to keep them, Marwitz did not identify a specific company policy and

Pospychala himself was never questioned about why he wanted to retain the parts.

                                            30
Rather, Rutledge testified that Pospychala thought the parts were in good condition and

presumably could be used again not because he thought the plant might need to see them

as part of the investigation. Rutledge threw them away because they were extraneous

parts they no longer needed and the plant did not have the space to keep old parts.

       All of this happened within the first week after the incident. The “sloppiness” of

the controller was a concern early on. However, there is no evidence the concern was

over it being a possible cause of the malfunction when Marwitz asked Rutledge to work

on it because the unmodified controller had operated the crane properly after the blowout

coils were replaced. EDT was on site as early as May 4, 2006, but it did not realize there

had to be a factor besides the fractured blowout coils at play until its on-site testing in

August of 2007.

       Based upon this sequence of events, we cannot say the trial court erred in finding

that ArcelorMittal did not realize the importance of the evidence for some time after it

was altered and/or discarded and therefore did not act with intent to prejudice WESCO in

this litigation. Moreover, because the evidence was destroyed before either side had a

chance to inspect it, the prejudice to the parties is approximately equal:        although

WESCO could not conclusively prove the screws on the controller were tight on the day

of the incident, neither could ArcelorMittal conclusively prove they were loose. Both

sides were required to prove their theory of causation by logical inference and deduction.

Therefore, the trial court did not abuse its discretion in declining to sanction

ArcelorMittal for the failure to preserve the evidence, especially with the extreme

sanction of dismissal.

                                            31
       With respect to WESCO’s request to instruct the jury that a party’s failure to

produce evidence in its control may establish an inference that the evidence was

unfavorable to that party, the question is not whether we would have given the instruction

had we been in the trial court’s shoes but whether the trial court abused its discretion in

denying it. In reviewing a trial court’s decision to refuse a tendered instruction, we will

reverse if the instruction: (1) correctly states the law; (2) is supported by the evidence in

the record; and (3) is not covered in substance by other instructions. See Wal–Mart

Stores, Inc. v. Wright, 774 N.E.2d 891, 893 (Ind. 2002). The decision to deny a tendered

jury instruction is largely left to the sound discretion of the trial court and we will review

the trial court’s decision only for an abuse of that discretion. Tucker v. Harrison, 973

N.E.2d 46, 56 (Ind. Ct. App. 2012), trans. denied.         Here, the trial court found the

instruction tendered by WESCO was not supported by evidence that ArcelorMittal had

actively suppressed evidence it knew or suspected had a bearing on the case. But because

WESCO had been able to question witnesses about that evidence and make argument

about why it was important and why its unavailability mattered, the issue was clearly

before the jury. We cannot say the trial court abused its discretion in refusing to give an

adverse inference instruction.

                                 III. Product Identification

       WESCO claims the trial court abused its discretion in admitting expert testimony

about the source of the blowout coils in the contactors on the date of the incident and that

absent that testimony, ArcelorMittal failed to offer any evidence to prove that both



                                             32
blowout coils were supplied by WESCO. Therefore, WESCO claims the admission of

this evidence was reversible error.

       The admission of expert testimony is within the discretion of the trial court,

Armstrong, 775 N.E.2d at 365, and reversal is not appropriate unless any abuse of

discretion causes prejudice, Franciose, 907 N.E.2d at 144.

       During Dr. Jur’s testimony, he was asked about his investigation into the “root

cause” of the incident, or as Dr. Jur described it, figuring out “what, who and why, where

– but really who – is all this traceable to.” Tr. at 4238. His investigation included

       search[ing] through the documents that underlie the arrival of these parts
       into the plant . . . purchase orders, and delivery documents, and such as
       that. . . . [T]his is literally something I do on just about every file like this
       . . . . Sometimes I will assign this role to another person in the company,
       depending upon the level of complexity of the pieces of equipment that are
       involved. . . .
                This particular case, I chose to do it by myself [because] it became
       apparent to me that the range of these documents, and where they were
       coming from, and how it related to when things got at the plant and how
       they were installed and so forth, relative to the reconstruction of the
       incident, I elected to take over the task entirely myself and do it.

Tr. at 4241-42. Dr. Jur was expected to testify based upon his review of these records

that both contactors and blowout coils in place on April 28 were supplied by WESCO.

WESCO objected to the testimony:

              For the purposes of this hearing, outside the presence of the jury,
       we’ll stipulate that, that’s what we understand his ultimate opinion to be
       [that the blowout coils came from WESCO]. However, that does not
       negate the fact that it’s not expert testimony under Rule 702. He has not
       established that this requires any scientific, technical or other specialized
       knowledge. This was something that was already done by a plant guy.




                                              33
Tr. at 4251; see also Tr. at 4264 (“And this is cumulative in nature and it’s certainly not

expert testimony under Rule 702.”).       Ultimately, the trial court allowed Dr. Jur’s

testimony:

              I’m allowing Dr. Jur’s opinions under Rule 702. I do find that he
       has specialized knowledge about this because of his review of all of the
       documents, and the testimony, and the other things that come to bear on the
       question of the source of these blowout coils. So, in that sense, it is an
       expert. It’s not scientific. It’s not technical, but it does involve some
       specialized knowledge which he has, which I also find will be helpful to the
       jury in understanding this case and making a reasoned determination of the
       source of these parts.

Tr. at 4375.

       WESCO contends the trial court abused its discretion in admitting Dr. Jur’s

testimony because expert testimony was not required to prove the blowout coils came

from WESCO, and further, any specialized knowledge Dr. Jur had with regard to this

issue was gained solely from this case and is insufficient to qualify him as an expert in

the first place. WESCO claims prejudice in that allowing Dr. Jur to testify as an expert

gave added gravitas to his conclusion and without his testimony, there was no proof

connecting both contactors and the blowout coils therein to WESCO.

       Whether or not expert testimony was “required” to prove the source of the

blowout coils, it is apparent that because of how WESCO labeled parts and how

ArcelorMittal documented the procurement, storage, and use of parts in the plant, the

source was far from straightforward.     The jury could not simply look at documentary

evidence itself and determine that ArcelorMittal had received a given part from a given

supplier, installed that part on the crane on a certain date, and the part remained there


                                            34
until the date of the incident. And although WESCO focuses on Dr. Jur’s lack of

knowledge about ArcelorMittal’s specific record-keeping prior to this case, it is clear that

he has conducted similar reviews in other cases which allowed him to look at the

evidence in this case and make sense of it. The trial court did not abuse its discretion in

finding Dr. Jur had “specialized knowledge” that would assist the trier of fact.

       Additionally, had Dr. Jur fallen short of being qualified as an expert for this

purpose, he could still have testified as a skilled witness pursuant to Evidence Rule 701:

              [T]he testimony of an observer, skilled in an art or possessing
       knowledge beyond the ken of the average juror[,] may be nothing more
       than a report of what the witness observed, and therefore, admissible as lay
       testimony. This type of evidence is not a matter of scientific principles
       governed by Evid. R. 702(b); rather, it is a matter of the observations of
       persons with specialized knowledge.
              Such witnesses possessing specialized knowledge are often called
       skilled witnesses or skilled lay observers. A skilled witness is a person
       with a degree of knowledge short of that sufficient to be declared an expert
       under Ind. Evid. R. 702, but somewhat beyond that possessed by the
       ordinary jurors. Skilled witnesses not only can testify about their
       observations, they can also testify to opinions or inferences that are based
       solely on facts within their own personal knowledge.

Linton v. Davis, 887 N.E.2d 960, 975 (Ind. Ct. App. 2008) (citations and quotation marks

omitted), trans. denied. Under Indiana Evidence Rule 701, a skilled witness may provide

an opinion or inference that is “(a) rationally based on the perception of the witness and

(b) helpful to a clear understanding of the witness’s testimony or the determination of a

fact in issue.” Ind. Evid. R. 701. The requirement that the opinion be “helpful” means,

in part, that the testimony gives substance to facts that are difficult to articulate. Hanson

v. State, 704 N.E.2d 152, 155 (Ind. Ct. App. 1999). Testimony under Indiana Rule 701

“generally needs only rise to a relatively low bar in order to be admissible.” Hawkins v.

                                             35
State, 884 N.E.2d 939, 945 (Ind. Ct. App. 2008), trans. denied. Dr. Jur personally

reviewed ArcelorMittal’s records regarding the purchasing and installation of the

contactors and blowout coils in addition to personally inspecting the equipment. His

testimony about the source of the blowout coils was rationally based upon his own

perceptions and helped to explain how ArcelorMittal determined the blowout coils

originated with WESCO. Thus, his testimony would have been admissible under Rule

701 even if he had not qualified as an expert under Rule 702.

       And finally, even if the trial court had abused its discretion in admitting Dr. Jur’s

testimony, WESCO acknowledged at trial that his testimony was cumulative and

therefore its contention that without the testimony there is no evidence linking WESCO

to the fractured blowout coils is dubious. Marwitz testified regarding the source of the

contactors and blowout coils as well. After the incident, Marwitz conducted an inventory

and identified ten contactors in the plant’s possession at the relevant time. He was able to

account for each and determined the two on the crane at the time of the incident came

from WESCO. Tr. at 3768; see Exhibit 1984. Apparently there was a blowout coil

failure in one of the crane’s contactors in February 2006 and Marwitz could not say for

sure whether just the blowout coil or the entire contactor was replaced. His testimony,

then, though clear that the contactor had been obtained from WESCO, was unclear about

whether the blowout coil therein was also obtained from WESCO. Pospychala, however,

filled in that gap when he testified that he had personally replaced the entire contactor.

Even if Dr. Jur’s testimony on product identification should not have been admitted,

WESCO was not harmed.

                                            36
                         IV. Proximate Cause and Foreseeability

       WESCO alleges that it was entitled to summary judgment or judgment on the

evidence because the combination of events leading to the ladle spill was not foreseeable

as a matter of law and therefore WESCO was not the proximate cause of ArcelorMittal’s

damages. WESCO’s argument in this regard seems to encompass two separate concepts:

foreseeability of the chain of events causing the incident and foreseeability of the

damages that were caused by the incident.

       As noted above, the elements of a breach of contract claim are: the existence of a

contract, the defendant’s breach of the contract, and the plaintiff’s damages as a result of

the breach. Fowler, 612 N.E.2d at 600. The plaintiff has the burden of demonstrating

that the defendant’s breach was a substantial factor contributing to the damages. Hopper

v. Colonial Motel Props., Inc., 762 N.E.2d 181, 187 (Ind. Ct. App. 2002), trans. denied.

Causation generally, and proximate cause in particular, is usually a question of fact for

the jury’s determination. Correll v. Ind. Dep’t of Transp., 783 N.E.2d 706, 707 (Ind. Ct.

App. 2002), trans. denied. The issue of proximate cause was in fact submitted to the jury

via the “responsible cause” instruction tendered by WESCO and quoted in the facts

above. ArcelorMittal contends and we agree that WESCO’s challenge is actually to the

sufficiency of the evidence supporting the jury’s proximate cause determination.

       In order to recover on a breach of contract claim, the alleged breach must be a

cause in fact of the plaintiff’s loss. Fowler, 612 N.E.2d at 601. Where an injury arising

from the breach of contract may have resulted from multiple causes, we do not recognize

“comparative causation”: the test is not whether the breach was the only cause or

                                            37
whether other causes may have contributed to the loss, but whether the breach was “a

substantial factor in bringing about the harm.” Id. at 602. It would not have been

unreasonable based upon the evidence for the jury to determine that the fractured blowout

coils, though not the sole factor, were a substantial factor in bringing about

ArcelorMittal’s loss. Without the fractured blowout coils, the other events would not

have combined to cause the crane’s brakes to fail and the ladle to descend, ultimately

tipping and starting a fire when molten iron spilled out.

       To the extent WESCO argues the other events were intervening or superseding

causes, those are generally negligence concepts, as the trial court noted during the

instruction conference. See Tr. at 6866 (trial court noting with respect to WESCO’s

tendered instruction that “I’m having trouble with that. This is a tort concept, not a

breach of contract concept.”). In fact, the tendered instruction apparently referred to

“negligence” and “fault,” and was rewritten to use the terms “breach of contract” and

“causation” before it was given to the jury. See Tr. at 6871-74. Our research has

disclosed no Indiana cases that discuss intervening or superseding cause in the context of

a breach of contract action and WESCO has not cited one. However, to the extent those

concepts are applicable in this situation, we note that the action of someone or something

other than the alleged tortfeasor that affects the chain of causation is an intervening

cause; it becomes a superseding cause breaking the chain of causation if it was not

foreseeable. Conder v. Hull Lift Truck, Inc., 435 N.E.2d 10, 14 (Ind. 1982).

       Under the doctrine of superseding causation, a chain of causation may be
       broken if an independent agency intervenes between the defendant’s
       negligence and the resulting injury. The key to determining whether an

                                             38
         intervening agency has broken the original chain of causation is to
         determine whether, under the circumstances, it was reasonably foreseeable
         that the agency would intervene in such a way as to cause the resulting
         injury. When assessing foreseeability in the context of proximate cause,
         courts evaluate the particular circumstances of an incident after the incident
         occurs.

Scott v. Retz, 916 N.E.2d 252, 257 (Ind. Ct. App. 2009) (citations, quotations, and

alterations omitted). The jury was instructed as WESCO wished on this issue. The jury

reasonably could have determined that none of the individual events that contributed to

this incident were independent, unrelated causes.                        Even WESCO characterizes this

incident as a “convergence of events.” See, e.g., Br. of Appellant at 63. Just as it is true

that if there were no loose switches in the controller, the fracture of the blowout coils

alone would not have caused the brake failure, the opposite is also true: if there was no

fracture of the blowout coils, the loose switches alone would not have caused the

malfunction.10 The causes had to work in concert. Because causation is generally a

matter to be determined by the trier of fact, the trial court did not err in submitting the

issue to the jury. Moreover, there was sufficient evidence of causation from which the

jury could reasonably determine that the fractured blowout coils supplied by WESCO

were a substantial factor in bringing about ArcelorMittal’s loss.

         As to damages, the measure of damages in a breach of contract action is limited by

what is reasonably foreseeable at the time the parties entered into the contract, not what is

known at the time of the breach; the test is an objective one. Berkel & Co. Contractors,

Inc. v. Palm & Assoc., Inc., 814 N.E.2d 649, 658-59 (Ind. Ct. App. 2004).
         10
            This is in fact the result of the August 2007 test EDT conducted. EDT operated the crane with no
blowout coils in place and the crane still held a full ladle. It was because of this that EDT concluded there had to be
another element involved which led to the analysis of the electrical system in the controller.

                                                          39
“Foreseeability means that which it is objectively reasonable to expect, not merely what

might conceivably occur.” Belle City Amusements, Inc. v. Doorway Promotions, Inc.,

936 N.E.2d 243, 249 (Ind. Ct. App. 2010) (citation omitted). “Conversely, damages

which do not arise naturally from the breach of contract, or which are not within the

contemplation of the parties at the time the contract is entered into, are not recoverable.”

Rogier v. Am. Testing & Eng’g Corp., 734 N.E.2d 606, 614 (Ind. Ct. App. 2000), trans.

denied; see Belle City Amusements, Inc., 936 N.E.2d at 249-50 (holding that lost profits

beyond 2009 for vendor’s breach of contract to supply a festival midway in 2008 and

2009 were not reasonably foreseeable as a consequence of the breach); Hopper, 762

N.E.2d at 187-88 (damages for personal injury caused to motel patron when the person in

the room above accidentally discharged a gun into her room were not reasonably

foreseeable at the time the injured party and the motel entered into a contract for rental of

the room). “[T]he possibility that a particular injury is not a foreseeable result of a

particular breach of contract should not completely foreclose a litigant from proving the

breach and recovering those damages which he can show to be a foreseeable consequence

of the breach.” Wells v. Stone City Bank, 691 N.E.2d 1246, 1249 (Ind. Ct. App. 1998),

trans. denied.    Thus, the focus should not be on whether the additional events

contributing to the incident were foreseeable at the time of contracting, as WESCO

frames the issue, but on whether the elements of ArcelorMittal’s damages were

foreseeable at the time of contracting as a consequence of the breach.

       The issue of foreseeability of damages is generally to be determined by the trier of

fact. Bob Anderson Pontiac, Inc. v. Davidson, 155 Ind. App. 395, 403, 293 N.E.2d 232,

                                             40
236 (1973). Even if ArcelorMittal had not been entitled to the full measure of damages it

sought, it was entitled to present evidence of the breach and resulting damages and have

the trier of fact determine what was reasonably foreseeable at the time of contracting.

Therefore, the trial court appropriately declined to enter judgment for WESCO as a

matter of law and instead submitted the issue to the jury.

       A jury could reasonably infer that it was foreseeable to the parties to this sale that

a component to be used in the braking system of a crane at a steel mill, if faulty, could

lead to brake failure. Given that the cranes were used to transport molten iron, the jury

could also reasonably infer that it was foreseeable a brake failure could lead to significant

damage and loss if the load was spilled. Moreover, ArcelorMittal points to the purchase

order terms and conditions accompanying the contactor purchases that state WESCO

would indemnify ArcelorMittal “from and against any and all loss, costs, damage,

expense and claims on account of any and all damange to, loss to, or destruction of any

ArcelorMittal property arising directly or indirectly out of the . . . contactors supplied by

WESCO pursuant to the purchase orders.” Brief of Appellee at 65; see Exhibit 19-8A,

535-4, 258-6A. We will not disturb the jury’s decision regarding causation.

                            V. Subsequent Remedial Measures

       WESCO also claims the trial court erred in precluding it from admitting evidence

of subsequent remedial measures taken by ArcelorMittal. It argues this is reversible error

because ArcelorMittal was allowed to admit evidence that the blowout coils were

replaced following the incident, the crane operated normally thereafter, and no similar

incidents have occurred since April 28, 2006, leaving the jury with the impression that

                                             41
there were no other incidents because the fractured blowout coils had been replaced.11

WESCO wished to present evidence that in addition to replacing the blowout coils after

the incident, ArcelorMittal implemented a policy that the auxiliary hook be kept above

the ladle and reinstalled a spring return-to-center safety feature on the controller.

         Indiana Evidence Rule 407 provides:

               When after an event, measures are taken which, if taken previously,
         would have made the event less likely to occur, evidence of the subsequent
         measures is not admissible to prove negligence or culpable conduct in
         connection with the event. This rule does not require the exclusion of
         evidence of subsequent measures when offered for another purpose, such as
         proving ownership, control, or feasibility of precautionary measures, if
         controverted, or impeachment.

Pursuant to this rule, evidence of post-incident remedial measures is generally

inadmissible. Hagerman Constr., Inc. v. Copeland, 697 N.E.2d 948, 954 (Ind. Ct. App.

1998), trans. denied. Evidence of a subsequent remedial measure may, however, be

admitted when offered for purposes other than proving culpable conduct.                                    Id. The

principal concerns underlying Rule 407 are that permitting proof of subsequent remedial

measures will deter a party from taking action that will prevent future injuries and doubt

that subsequent measures have probative value in proving omission or misconduct.

Strack & Van Til, Inc. v. Carter, 803 N.E.2d 666, 670-71 (Ind. Ct. App. 2004). The

decision to admit or exclude evidence lies within the sound discretion of the trial court


         11
               WESCO states, “The court allowed [ArcelorMittal] to present unrebutted evidence and argument that
after the incident, and after the Blowout Coils were replaced, [ArcelorMittal] did not experience any other
uncontrolled Ladle descents. (Tr. 1560).” Br. of Appellant at 67. It is true that at page 1560 of the transcript,
Kevin McCabe, an ArcelorMittal employee who was on site the night of the incident, testified that he was not aware
of any other time, going all the way to the day of his testimony, when molten iron had spilled onto the floor of the
facility. It is also true that after the incident, the blowout coils were replaced. But McCabe did not testify regarding
the blowout coils at all, let alone their replacement, so the temporal connection is not as direct as WESCO would
make it seem.

                                                          42
and is afforded great discretion on appeal. Id. at 670. We will not reverse that decision

absent a showing of abuse of that discretion. Id.

       McCabe testified that the only place a crane operator could not keep the auxiliary

hook was beneath the dump lug on the ladle but otherwise he could keep it above or

below as long as it was also away from the dump lug. He also testified that he was not

aware of any other time that a ladle had spilled its contents onto the floor of the plant.

ArcelorMittal employee David Whitworth testified similarly.              WESCO argued

ArcelorMittal had opened the door to evidence that after the incident, ArcelorMittal’s

policy was changed to require crane operators to keep the auxiliary hook above and away

from the ladle. WESCO asserted it was entitled to introduce this evidence in order to

impeach testimony that it was not unsafe to keep the hook below the dump lug and also

to correct a misimpression the jury might have that the operation of the crane had nothing

to do with the incident. The trial court disagreed and WESCO was not allowed to inquire

about the policy change.     WESCO did, however, elicit testimony that some crane

operators preferred to keep the auxiliary hook above the dump lug and further, WESCO’s

expert testified that the incident would not have happened if the auxiliary hook had been

placed above. As for the spring return-to-center mechanism, the trial court did not allow

WESCO to specifically ask Whitworth if the spring return-to-center mechanism had been

reinstalled on the controllers, but there was evidence before the jury from other witnesses

that the mechanism had been absent from the controllers for many years prior to the

incident and that the mechanism was on the controllers after the incident.



                                            43
      Because there was evidence regarding the spring return-to-center mechanism, the

trial court did not abuse its discretion in excluding additional, cumulative evidence

regarding that revision and WESCO was not prejudiced by the exclusion. With respect to

the policy change regarding placement of the auxiliary hook in relation to the dump lug,

WESCO argued impeachment and feasibility as the “other purposes” for its inquiry.

However, no one testified that it was not feasible to place the auxiliary hook above the

dump lug, only that it was not required to do so. And as to impeachment, WESCO

argued that ArcelorMittal witnesses “testified that it is safe to have the auxiliary hook

below, there’s nothing unsafe about it. We should be entitled to put on evidence that it,

in fact, isn’t safe, and they know it isn’t safe because they changed the procedure

afterwards.” Tr. at 1660. WESCO also asserted that “[t]he jury is entitled to know

they’ve changed their procedures, and that’s why there haven’t been any other accidents.”

Id. at 1661. This is the definition of attempting to prove fault through evidence of

subsequent remedial measures, and such evidence is inadmissible pursuant to Rule 407

for that purpose. Further, there is no direct correlation as WESCO asserts. Prior to the

incident, crane operators could have the auxiliary hook above or below the ladle, just not

directly beneath the dump lug. If they could have it below, it stands to reason there were

times prior to April 28, 2006, when it was below, and yet there had been no ladle spills

until this incident. Accordingly, the placement of the auxiliary hook alone could not be

the cause.   The trial court did not abuse its discretion in excluding evidence of

ArcelorMittal’s policy change regarding the placement of the auxiliary hook.

                             VI. Production of Documents

                                           44
        Certain portions of documents produced by ArcelorMittal in discovery were

redacted and other documents were withheld altogether on the basis of work product

and/or attorney-client privilege. WESCO filed a motion to compel the production of

documents that the trial court granted in part and denied in part.12 WESCO contends the

trial court may have abused its discretion by denying access to some or all of the

documents.

        “Due to the fact-sensitive nature of discovery matters, the ruling of the trial court

is cloaked in a strong presumption of correctness on appeal.” Mutual Sec. Life Ins. Co.

by Bennett v. Fidelity and Deposit Co., 659 N.E.2d 1096, 1103 (Ind. Ct. App. 1995),

trans. denied. A trial court has broad discretion in ruling on discovery issues, and we will

reverse only where it is apparent the trial court abused that discretion. Childress v.

Buckler, 779 N.E.2d 546, 554 (Ind. Ct. App. 2002). Further, we will not reverse a trial

court discovery order without a showing of prejudice. Pioneer Lumber Inc. v. Bartels,

673 N.E.2d 12, 15 (Ind. Ct. App. 1996), trans. denied; Ind. Trial Rule 61.

        With limited exception, the trial court determined that the redacted/withheld

material was protected by the work product and/or attorney-client privilege. As the party

asserting a privilege in response to a discovery request, ArcelorMittal had the burden to

prove the applicability on a document-by-document basis.                        Howard v. Dravet, 813

N.E.2d 1217, 1221-22 (Ind. Ct. App. 2004). The attorney-client privilege arises out of

the provisions of Indiana Code section 34-46-3-1 and “protects against judicially


        12
            WESCO sought certification of the trial court’s orders regarding these documents for the purpose of
pursuing an interlocutory appeal, but the trial court denied that motion.

                                                      45
compelled disclosure of confidential information regardless of whether the information is

to be disclosed by way of testimony or by court-ordered compliance with a discovery

request . . . .” Brown v. Katz, 868 N.E.2d 1159, 1165-66 (Ind. Ct. App. 2007). Indiana

Trial Rule 26(B)(3) defines the work-product privilege and provides:

       a party may obtain discovery of documents and tangible things otherwise
       discoverable . . . and prepared in anticipation of litigation or for trial by or
       for another party or by or for that other party’s representative . . . only upon
       a showing that the party seeking discovery has a substantial need of the
       materials in the preparation of his case and that he is unable without undue
       hardship to obtain the substantial equivalent of the materials by other
       means.

(Emphasis added.) A document is gathered in anticipation of litigation if it can fairly be

said that the document was prepared or obtained because of the prospect of litigation.

Nat’l Eng’g & Contracting Co., Inc. v. C & P Eng’g & Mfg. Co., Inc., 676 N.E.2d 372,

377 (Ind. Ct. App. 1997). Products of investigation are work product because their

subject matter relates to the preparation, strategy, and appraisal of the strengths and

weaknesses of an action, or to the activities of the attorneys involved. Id. at 376.

       An investigation by an insurance company does not automatically require a

finding that the investigation was conducted in anticipation of litigation. Burr v. United

Farm Bureau Mut. Ins. Co., 560 N.E.2d 1250, 1254 (Ind. Ct. App. 1990), trans. denied.

And the fact the plaintiff has hired an attorney also does not mandate a finding that an

investigation was undertaken in anticipation of litigation. Id. However, consultation

between the insurance company and an attorney during the investigation is an important

factor that generally weighs in favor of finding a work product privilege. Id. An

insurance company cannot reasonably argue that the entirety of its claim file is

                                             46
accumulated in anticipation of litigation when it has a duty to investigate, evaluate, and

make a decision regarding an insured’s claim. Id. at 1255.

       The trial court noted in its initial order on this discovery issue that “[i]n review of

these documents, this Court is mindful [of caselaw stating] that a document produced by

an insurer for the purpose of arriving at a claim decision, even though it was produced

after litigation was reasonably anticipated, was prepared for concurrent purposes, and

therefore not work product.” App. at 105. During a later hearing on this matter, the trial

court stated:

               I spent an enormous amount of time going through these
       documents. It struck me, particularly, with regard to the withheld
       documents, that these really went to the heart of the attorney client
       relationship, to the retention of a consulting expert to investigate things,
       and, regardless of when they were produced, they were clearly in my view
       developed with antic – with litigation in mind. . . .
              The second thing that struck me is that, probably, with regard to
       most of the information contained in those documents, it would be flushed
       out during the course of discovery, in any event, in some way, shape or
       form. . . .

Tr. at 230-31.

       Obviously, not knowing the content of the redacted/withheld documents, WESCO

can only surmise that the trial court erred in ruling they were protected and that it has

been prejudiced by their non-disclosure. Accordingly, WESCO filed a motion asking this

court to conduct an in camera review of the non-redacted documents ArcelorMittal filed

with the trial court in order to determine whether the trial court’s ruling was proper and to

assess the prejudice to WESCO if not. We granted this motion at the oral argument and




                                             47
subsequently ordered the trial court to file those documents with the Clerk of this Court

for transmittal to the panel.

       Following our own review of the documents, the trial court’s reasoning for its

denial of the motion to compel, and the course of proceedings thereafter, we are of the

opinion that the trial court did not abuse its discretion in denying WESCO’s motion to

compel production because the protected documents were gathered in anticipation of

litigation or contained confidential information. Further, WESCO was not prejudiced by

the denial because, as the trial court surmised, much of the information contained in the

redacted and withheld documents was gleaned during further discovery, including

depositions of relevant witnesses and the exchange of exhibits.

                                VII. Prejudgment Interest

       WESCO claims the trial court erred in awarding prejudgment interest to

ArcelorMittal should we affirm the judgment in ArcelorMittal’s favor, as we have. An

award of pre-judgment interest in a breach of contract action is warranted “if the amount

of the claim rests upon a simple calculation and the terms of the contract make such a

claim ascertainable.” Noble Roman’s Inc. v. Ward, 760 N.E.2d 1132, 1140 (Ind. Ct.

App. 2002). “The test for determining whether an award of pre-judgment interest is

appropriate is whether the damages are complete and may be ascertained as of a

particular time.” Id. An award of prejudgment interest is proper when the trier of fact

does not have to exercise judgment in order to assess the amount of damages. Kummerer

v. Marshall, 971 N.E.2d 198, 201 (Ind. Ct. App. 2012), trans. denied. Therefore, “an



                                           48
award of pre-judgment interest is generally not considered a matter of discretion.” Noble

Roman’s Inc., 760 N.E.2d at 1140.

       Examples of cases where prejudgment interest is appropriate include those for

breach of contract when the damages were principal payments made under a promissory

note, Tracy v. Morell, 948 N.E.2d 855, 867 (Ind. Ct. App. 2011); the amount of a

mechanics’ lien for a contractor’s unpaid bills for a remodeling project, Hayes v.

Chapman, 894 N.E.2d 1047, 1054-55 (Ind. Ct. App. 2008), trans. denied; and an amount

stipulated to at a damages hearing, Noble Roman’s, Inc., 760 N.E.2d at 1141. In these

cases, the amount of damages was clear and did not require any interpretation or

judgment on the part of the trier of fact.

       WESCO contends any award of prejudgment interest was in error because the jury

exercised discretion in arriving at a damages amount substantially different from what

ArcelorMittal claimed. ArcelorMittal claimed it suffered damages in the total amount of

$46,301,777:    $12,410,777 in property damage, $3,632,000 in extra expenses, and

$30,259,000 in lost margins on lost sales. The jury returned a verdict in the general

amount of $36,134,477.       In its post-trial motion, ArcelorMittal sought prejudgment

interest at the rate of eight percent per annum on the entire amount of the jury award from

the time it filed its complaint until the judgment was entered. App. at 4927-28. The trial

court awarded prejudgment interest at the rate of six percent per annum on $12,410,777,

the amount ArcelorMittal claimed to have expended to repair its facility. App. at 93.




                                             49
       ArcelorMittal contends the parties stipulated to the cost of repairing

ArcelorMittal’s facility and that ArcelorMittal actually incurred that expense.         The

stipulation, however, was:

       The parties agree and stipulate to the authenticity and admissibility of
       Exhibits 467, 468, 469, 470, 471, 472 and 473. These exhibits contain
       invoices reflecting the amounts spent by the plant for repairs after the April
       28, 2006, incident. These invoices total $12,410,777. . . . By entering into
       this stipulation and agreement, the parties have not reached an agreement
       that these amounts represent damages that are recoverable under Indiana
       law.

Tr. at 4959-60. Counsel for WESCO explained, “We agree that that’s what the amount

is. We’re not agreeing that those amounts were reasonable, and we’re not agreeing that

they are the measure of damages.” Tr. at 4960. The parties stipulated that the invoices

ArcelorMittal submitted regarding the cost of repair totaled $12,410,777. They did not

stipulate that the cost of repair was reasonable or that the total cost was an appropriate

measure of damages. In essence, WESCO stipulated to the admissibility of invoices in

order to relieve the need for ArcelorMittal to call a witness to identify and testify to the

content of each invoice. Contrary to ArcelorMittal’s position, the amount of damages

attributable to repair were not uncontested.

       It appears the jury did exercise judgment in arriving at a damages amount, as the

verdict is approximately ten million dollars less than the total damages claimed by

ArcelorMittal. Further, it appears the jury did not award as a lump sum the entire amount

of property damage claimed by ArcelorMittal—$12,410,777—because it awarded

damages of $36,134,477.        With just a general verdict, it is impossible to say, as

ArcelorMittal advocates, that there was “a single fixed component of its total damages

                                               50
. . . which was readily ascertainable” on which prejudgment interest could properly be

granted. Brief of Appellee at 85.       Rather, the verdict requires some interpretation.

Accordingly, ArcelorMittal was not entitled to prejudgment interest on any of the verdict,

and the trial court erred in granting prejudgment interest on any component thereof.

                                VIII. Damages Instruction

       Finally, we need not address WESCO’s issue regarding the trial court’s instruction

to the jury regarding the appropriate measure of damages. WESCO acknowledges this

would only be an issue if it prevailed and was granted a new trial. Br. of Appellant at 70.

Because we have found no reversible error in any of the issues previously raised by

WESCO, this issue is moot.

                                        Conclusion

       We conclude the trial court’s sole error was in awarding prejudgment interest to

ArcelorMittal. We reverse that award and remand to the trial court to amend the final

judgment accordingly. In all other respects, the judgment of the trial court is affirmed.

       Affirmed in part; reversed and remanded in part.

BAKER, J., and BRADFORD, J., concur.




                                             51
