                                                               FILED
                                                          Aug 29 2016, 5:44 am

                                                               CLERK
                                                           Indiana Supreme Court
                                                              Court of Appeals
                                                                and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kevin C. Schiferl                                          John F. Townsend, III
Darren A. Craig                                            Indianapolis, Indiana
Indianapolis, Indiana
                                                           W. Scott Montross
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Terex-Telelect, Inc.,                                      August 29, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           29A02-1511-CT-1949
        v.                                                 Appeal from the Hamilton
                                                           Superior Court
Anthony Wade,                                              The Honorable Steven R. Nation,
Appellee-Plaintiff.                                        Special Judge
                                                           Trial Court Cause No.
                                                           29D01-1004-CT-445



Altice, Judge.


                                          Case Summary1




1
 We held oral argument in this case on August 11, 2016, in Indianapolis. We commend counsel for their
excellent oral and written advocacy.

Court of Appeals of Indiana | Opinion 29A02-1511-CT-1949 | August 29, 2016                  Page 1 of 13
[1]   In a previous appeal in these proceedings, this court reversed a jury verdict in

      favor of Terex-Telelect, Inc. (Terex)2 based on an erroneous jury instruction.

      See Wade v. Terex-Telelect, Inc., 966 N.E.2d 186 (Ind. Ct. App. 2012), trans.

      denied.3 (Terex I). Specifically, the majority held that evidence of Terex’s

      compliance with American National Standards Institute Standard A92.2 (ANSI

      A92.2)4 in the design of the bucket at issue was irrelevant to the defect alleged

      by Wade, and thus, did not support the giving of a jury instruction regarding a

      rebuttable presumption that the bucket at issue was not defective. 5 The case

      was remanded to the trial court.


[2]   In advance of the third trial, Wade filed a motion in limine seeking to exclude

      evidence of Terex’s compliance with ANSI A92.2 and the design specifications

      found in ANSI A92.2. The trial court granted Wade’s motion, finding that this

      court’s decision in Terex I established the law of the case with regard to

      relevancy and therefore required such exclusion. Terex moved to certify the




      2
        This case was originally tried in the Shelby County Circuit Court in 2009, but resulted in a hung jury. A
      second jury trial was held in Hamilton County Superior Court in 2010, which trial resulted in the Terex
      verdict.
      3
       Our Supreme Court initially granted transfer and held oral argument. By a 3-2 vote, the Court rescinded its
      order granting transfer and reinstated the Court of Appeals opinion. See Wade v. Terex-Telelect, Inc., 984
      N.E.2d 219 (Ind. 2013).
      4
       ANSI is an independent entity that works in conjunction with the United States government, serves as the
      official representative of the United States to the International Standards Organization, and accredits various
      committees, which draft standards that are then approved and published as ANSI standards. ANSI A92.2
      applies to vehicle-mounted elevating and rotating aerial devices, commonly referred to as bucket trucks. The
      primary objective of this standard is to provide users, operators, manufacturers, sellers, inspectors, and others
      with instructions as to how the machines are to be manufactured, used, and maintained.
      5
        Judge Bradford dissented, concluding that Terex’s evidence of compliance with ANSI A92.2 entitled Terex
      to the regulatory compliance instruction.

      Court of Appeals of Indiana | Opinion 29A02-1511-CT-1949 | August 29, 2016                          Page 2 of 13
      matter for interlocutory appeal, which request the trial court granted. This

      court accepted jurisdiction over this interlocutory appeal on December 18,

      2015. There are two issues presented for our review:


              1. Under the law of the case doctrine, does this court’s prior
              opinion in Terex I require exclusion of evidence pertaining to
              ANSI A92.2 and Terex’s compliance therewith in a subsequent
              trial?


              2. Is evidence relating to ANSI A92.2 and Terex’s compliance
              therewith relevant?


[3]   We affirm.


                                        Facts & Procedural History


[4]   The underlying facts, taken from this court’s opinion following the second trial,

      follow:


              Terex is the manufacturer of buckets and booms used by utilities
              and construction companies to access elevated work areas. The
              buckets and booms allow linemen to work on utility lines and
              equipment that could not be reached from standing on the
              ground. A bucket is attached by a retractable boom to a truck,
              and the bucket is cradled on top of the truck for transport. When
              cradled, the bucket is approximately twelve feet above the
              ground.


              In 1994, Richmond Power & Light (“Richmond Power”)
              purchased a double-man bucket truck (“Truck 32”). After
              reviewing brochures regarding the products available, Richmond
              Power prepared detailed specifications for the type of truck
              desired. A bid was submitted by a distributor that complied with

      Court of Appeals of Indiana | Opinion 29A02-1511-CT-1949 | August 29, 2016   Page 3 of 13
        the specifications and included an aerial lift and bucket
        manufactured by Terex. This distributor was ultimately awarded
        the contract. Richmond Power specified that the bucket in Truck
        32 contain a polypropylene dielectric/insulating liner. The use of
        a dielectric liner is very important for utility companies
        purchasing bucket trucks because of the danger of a lineman
        being electrocuted by power lines. To maintain dielectric
        integrity, holes or openings in the liner are avoided because they
        would expose the occupant to electrical contact.


        Richmond Power’s specifications included an exterior step, and
        the bucket produced to meet these specifications had a molded
        exterior step with an interior recess that extended into the
        hollowed out portion of the exterior step. Richmond Power’s
        specifications did not include an interior step for the bucket or the
        liner. The interior recess for the exterior step was completely
        covered by the dielectric liner requested by Richmond Power. A
        molded interior step or a portable interior step were available
        options, but Richmond Power did not specify that it desired
        either.


        On August 25, 1997, Wade was employed by Richmond Power
        as an apprentice lineman. As part of his employment, Wade
        installed various types of equipment for Richmond Power, which
        sometimes involved the use of a bucket truck. When working in
        the bucket, linemen were attached to the bucket through the use
        of a lanyard and harness. The reason for wearing the lanyard is
        to ensure that the lineman does not fall to the ground if he were
        to lose his balance and fall. On the date at issue, Wade was
        working on the installation of a transformer approximately thirty
        feet off the ground. He was working from inside a double-man
        bucket attached to Truck 32. After finishing the installation, the
        bucket was lowered to the cradling position on top of the truck,
        with the top of the bucket approximately twelve feet above the
        ground. When the bucket was cradled, Wade replaced his tools
        in a tool apron that hung inside the bucket, removed his safety

Court of Appeals of Indiana | Opinion 29A02-1511-CT-1949 | August 29, 2016   Page 4 of 13
              goggles, detached his lanyard, and prepared to exit the bucket.
              While attempting to exit the bucket, Wade missed the exterior
              step completely and fell twelve feet to the ground. As a result of
              this fall, Wade was rendered quadriplegic.


              On July, 9, 1999, Wade filed a complaint against Terex and
              Dueco, Inc. (“Dueco”), a distributor of Terex products, alleging
              that Terex was negligent under the Indiana Product Liability Act
              in the design of the bucket, which injured Wade. Wade
              contended that the interior recess for the exterior step was in fact
              an interior step and that the lack of a molded interior step on the
              insulating dielectric liner caused this interior step to be covered
              up, which led to his fall. Wade alleged that, because Terex had
              sold liners with molded interior steps to other customers, Terex
              should not have allowed the sale of an insulating dielectric
              bucket liner that contained no molded interior step.


      Terex I, 966 N.E.2d at 189-90 (footnote omitted).


[5]   After the first trial ended in a hung jury, the second jury trial commenced on

      June 16, 2010. At trial, Terex presented evidence that it complied with

      Richmond Power’s specifications by providing an insulating dielectric bucket

      liner without an interior step. Terex also presented evidence that it complied

      with ANSI A92.2 in designing and manufacturing the bucket. This evidence

      included expert testimony from three witnesses, including a board-certified

      safety professional, an engineer and former director of safety for Terex, and the

      past chairman of the subcommittee that drafted ANSI A92.2, that the bucket at

      issue met the specifications contained in ANSI A92.2.




      Court of Appeals of Indiana | Opinion 29A02-1511-CT-1949 | August 29, 2016   Page 5 of 13
[6]   Over Wade’s objection, the trial court included a regulatory compliance

      instruction submitted by Terex. The instruction informed the jury there was a

      rebuttable presumption that the bucket was not defective and/or that Terex was

      not negligent in the manufacture and design thereof because of its compliance

      with applicable codes, regulations, and specifications. 6 The jury returned a

      verdict that allocated zero fault to Terex, zero fault to Dueco,7 and one-hundred

      percent fault to Wade. Wade appealed to this court, arguing in part that the

      trial court erroneously instructed the jury regarding the rebuttable presumption.

      The majority agreed, and reversed the jury verdict. See Terex I.


[7]   Prior to the retrial,8 Wade filed a motion in limine seeking to exclude evidence

      concerning the applicability of and Terex’s compliance with ANSI A92.2’s

      design standards.9 Like Wade, the trial court interpreted this court’s opinion in




      6
        Pursuant to the Indiana Product Liability Act (IPLA), there is a rebuttable presumption that the product
      that caused the physical harm was not defective and that the manufacturer or seller of the product was not
      negligent if it can be shown that (1) the product conformed to generally recognized state of the art applicable
      to the safety of the product at the time the product was designed, manufactured, packaged, or labeled, or (2)
      the product complied with applicable codes, regulations, specifications, etc. See Ind. Code § 34-20-5-1. The
      trial court gave Final Jury Instruction 26, which set forth this rebuttable presumption.
      7
       In 2006, Dueco settled with Wade and was dismissed from the lawsuit; Terex subsequently named Dueco
      as a non-party defendant.
      8
          The case was transferred to the Honorable Steven Nation, Hamilton County Superior Court No. 1.
      9
          Terex challenges two specific provisions in the Motion in Limine. Motion in Limine #2 provides:

               “Compliance” with ANSI Standards and OSHA Regulations which are silent on bucket exiting
               procedures. (The Shelby Circuit Court denied this motion, Exhibit 2, January 28, 2008
               Amended Order on Pending Motions. The Hamilton Superior Court No. 3 similarly denied the
               motion, however, the Court of Appeals reversed the verdict for the Defendant based on the
               erroneous admission of these irrelevant standards and regulations to the jury. Wade, at 194-95).
      Appellant’s Appendix at 46-47. Motion in Limine #9 provides:
               Defense expert Gary McAlexander’s testimony in its entirety. Plaintiff originally sought a
               motion in limine about design and human factors engineering aspects of the product, the lack of

      Court of Appeals of Indiana | Opinion 29A02-1511-CT-1949 | August 29, 2016                         Page 6 of 13
      Terex I to say that evidence relating to ANSI A92.2 was irrelevant because that

      standard did not address the specific defect alleged by Wade. The trial court

      found Terex I to establish the law of the case with respect to the relevancy of

      evidence relating to ANSI A92.2 and indicated that it felt “constrained” to

      grant Wade’s motion. Transcript at 22. Terex then initiated this interlocutory

      appeal.


                                            Discussion & Decision


[8]   The grant or denial of a motion in limine is within the sound discretion of the

      trial court and is an adjunct of the power of trial courts to admit and exclude

      evidence. Hopper v. Carey, 716 N.E.2d 566, 570 (Ind. Ct. App. 1999), trans.

      denied. Therefore, when reviewing a grant or denial of a motion in limine, we

      apply the standard of review for the admission of evidence, which is whether

      the trial court abused its discretion. Id. We will find that a trial court has

      abused its discretion when its decision is clearly against the logic and effect of

      the facts and circumstances before the court. Perry v. Gulf Stream Coach, Inc.,

      871 N.E.2d 1038, 1047 (Ind. Ct. App. 2007).


                                               1. Law of the Case




             prior accidents, and the behavior of Richmond Power & Light. (The Shelby Circuit Court
             granted this motion. Exhibit 3, July 27, 2009 Order, p.2, ¶ 6. The Hamilton Superior Court
             No. 3 limited his testimony to the applicability of ANSI and OSHA regulations. Plaintiff seeks
             to exclude this testimony as well.)
      Id. at 48.

      Court of Appeals of Indiana | Opinion 29A02-1511-CT-1949 | August 29, 2016                      Page 7 of 13
[9]    The law of the case doctrine provides that an appellate court’s determination of

       a legal issue binds both the trial court and the appellate court in any subsequent

       appeal involving the same case and substantially the same facts. Dutchmen Mfg.,

       Inc. v. Reynolds, 891 N.E.2d 1074, 1082 (Ind. Ct. App. 2008), trans. denied. The

       purpose of the doctrine is to minimize unnecessary repeated litigation of legal

       issues once they have been resolved by an appellate court. Id. This doctrine is

       based upon the sound policy that once an issue is litigated and decided, that

       should be the end of the matter. Godby v. Whitehead, 837 N.E.2d 146, 152 (Ind.

       Ct. App. 2005). Accordingly, the law of the case doctrine bars relitigation of all

       issues decided “directly or by implication in a prior decision.” Luhnow v. Horn,

       760 N.E.2d 621, 625 (Ind. Ct. App. 2001).


[10]   Terex first challenges the trial court’s determination that Terex I establishes the

       law of the case with regard to the relevancy of evidence of its compliance with

       ANSI A92.2. Terex maintains that the sole issue addressed in Terex I was the

       propriety of the regulatory compliance instruction. Terex asserts that the

       precise holding in Terex I is that “where the safety standard is silent on a

       particular design element or product risk, compliance with the safety standard

       will not trigger the statutory presumption.” Appellant’s Brief at 12. Terex

       disagrees with any interpretation of Terex I that would make evidence of its

       compliance with ANSI A92.2 irrelevant across the board.


[11]   Terex further notes that Wade did not object during the second trial to the

       admissibility of evidence relating to Terex’s compliance with ANSI A92.2 as it

       pertained to the assessment of the reasonableness of Terex’s conduct, and thus,

       Court of Appeals of Indiana | Opinion 29A02-1511-CT-1949 | August 29, 2016   Page 8 of 13
       the general relevance of such evidence pursuant to Ind. Evidence Rule 401 was

       not an issue before this court in Terex I. As such, Terex asserts that the law of

       the case doctrine does not operate to render all evidence of its compliance with

       ANSI A92.2 inadmissible on grounds of relevance for purposes of retrial on

       Wade’s product liability claim.


[12]   We agree that in Terex I, the issue addressed concerned the propriety of the

       rebuttable presumption instruction given to the jury. In deciding whether error

       resulted from the giving of a jury instruction, a reviewing court must consider

       (1) whether the instruction correctly states the law, (2) whether there is evidence

       in the record supporting the instruction, and (3) whether the substance of the

       instruction is covered by other instructions. Hill v. Rhinehart, 45 N.E.3d 427,

       439 (Ind. Ct. App. 2015), trans. denied. In Terex I, the majority’s analysis

       focused on the second prong.


[13]   The majority concluded that although OSHA regulations require compliance

       with ANSI standards for lift trucks and that Terex presented evidence regarding

       its compliance therewith, Terex was not entitled to the rebuttable presumption

       instruction. In its analysis, the majority noted that “for evidence of compliance

       with governmental standards to be relevant, the standard itself must relate to the

       risk or product defect at issue.” Terex I at 195 (emphasis supplied). The

       majority then found that “[n]owhere in either the OSHA regulations or ANSI

       A92.2 is there a requirement for or prohibition of an interior step in buckets or

       liners. Rather, the standards are silent regarding interior steps.” Id. Thus,

       because the standard with which Terex complied “did not address the design

       Court of Appeals of Indiana | Opinion 29A02-1511-CT-1949 | August 29, 2016   Page 9 of 13
       issue in this case, namely, the egress out of buckets and the necessity of interior

       steps inside buckets to facilitate,” Terex presented “no relevant evidence” to

       support giving the regulatory compliance instruction Id. (emphasis supplied).

       Therefore, the majority held there was not sufficient evidence to support the

       giving of the rebuttable presumption instruction and that Wade was prejudiced

       by the instructional error.


[14]   The evidence in Terex I is the same evidence before us now. The only difference

       is that in the prior appeal, the argument was made at the jury instruction stage,

       while in the present appeal, the argument was at the motion in limine stage.

       Regardless of the procedural posture, the substance of both arguments is the

       same and they necessarily entail a determination of relevancy. We find that the

       majority’s analysis in Terex I implicitly, if not directly, decided that evidence

       concerning ANSI A92.2 and Terex’s compliance therewith is irrelevant to the

       design defect alleged by Wade. We thus agree with the trial court that the

       majority’s decision in Terex I is the law of the case with regard to relevancy.


[15]   To the extent Terex claims that evidence of its compliance with ANSI A92.2 is

       relevant to a determination of whether it exercised reasonable care, such was

       also implicitly decided in Terex I with the majority’s conclusion that Terex was

       not entitled to assert the rebuttable presumption found in the IPLA. We

       therefore conclude that the trial court did not abuse its discretion in granting

       Wade’s motion in limine so as to exclude evidence pertaining to ANSI A92.2

       and Terex’s compliance therewith from the third trial in this matter.



       Court of Appeals of Indiana | Opinion 29A02-1511-CT-1949 | August 29, 2016   Page 10 of 13
                                                   2. Relevance


[16]   Even if the law of the case doctrine does not bar admission of Terex’s

       compliance with ANSI standards, the parties dispute whether the trial court

       abused its discretion in granting Wade’s motion in limine excluding such

       evidence. The parties focus their arguments on the relevance of such evidence

       for purposes of retrial.


[17]   Relevant evidence is defined as evidence “having any tendency to make the

       existence of any fact that is of consequence to the determination of the action

       more probable or less probable than it would be without the evidence.” Ind.

       Evidence Rule 401. “Although evidence must be relevant to be admissible, see

       Ind. Evidence Rule 402, not all relevant evidence is admissible.” Davidson v.

       Bailey, 826 N.E.2d 80, 85 (Ind. Ct. App. 2005) (citing Wohlwend v. Edwards, 796

       N.E.2d 796, 785 (Ind. Ct. App. 2003)). Ind. Evidence Rule 403 provides that

       relevant evidence may be excluded if its probative value is substantially

       outweighed by the danger of unfair prejudice, confusion of the issues,

       misleading the jury, considerations of undue delay, or needless presentation of

       cumulative evidence. See also Davidson, 826 N.E.2d at 85.


[18]   Terex argues that ANSI A92.2 and its compliance therewith is relevant and

       therefore admissible because the jury must consider such evidence in evaluating

       the reasonableness of Terex’s actions in designing and manufacturing the

       bucket. Terex maintains that “a jury cannot adequately evaluate the

       reasonableness of the design without knowing what aspects of the design were


       Court of Appeals of Indiana | Opinion 29A02-1511-CT-1949 | August 29, 2016   Page 11 of 13
       mandated by the ANSI standard.” Appellant’s Brief at 14. In fact, Terex claims

       that several of the design requirements set forth in ANSI A92.2 are directly

       related to Wade’s allegations of defect and causation and are relevant to the

       jury’s evaluation of Wade’s alternative design theory or the issue of

       comparative fault. Terex also notes that, at the most basic level, the

       specifications found in ANSI A92.2 are essential to understanding the facts of

       this case and the conduct of the parties.


[19]   Wade acknowledges the design requirements contained in ANSI A92.2. Wade,

       asserts, however, that ANSI A92.2 is wholly irrelevant to the defect he alleged,

       i.e., the lack of an interior step to exit the bucket due to the placement of the

       dielectric liner over the existing interior recess in the bucket. Wade asserts that

       evidence of Terex’s compliance with ANSI A92.2 provides no explanation for

       his alleged defect. Finally, Wade claims the compliance evidence is not

       relevant to rebut his alternative design evidence because Wade’s alternative

       design is an actual product in Terex’s product line.


[20]   As noted by the majority in Terex I, evidence relating to ANSI A92.2 and

       Terex’s compliance therewith is of no consequence to the issue of safe egress

       from the bucket. The majority in Terex I presented an apt analogy:


               Thus, while the braking system on an automobile may be state of
               the art in terms of its ability to stop a car traveling at a designated
               rate of speed within a designated distance from the time the
               brakes are applied, such evidence would not be relevant in a
               products liability case where the braking system caused a fire in
               the vehicle.

       Court of Appeals of Indiana | Opinion 29A02-1511-CT-1949 | August 29, 2016   Page 12 of 13
Terex I, 966 N.E.2d at 193. The same holds true here. Compliance with ANSI

A92.2 is not relevant in a product liability case where the standard is silent with

regard to the defect alleged. Indeed, we find that evidence relating to ANSI

A92.2 and Terex’s compliance therewith would serve no purpose other than to

mislead or confuse the fact-finder about the issue to be decided. Thus, even if

there was no prior decision by this court establishing the law of the case, Terex

has not established that the trial court abused its discretion in granting Wade’s

motion in limine.


For all of the above reasons, we affirm the trial court’s grant of Wade’s motion

in limine as to the evidence referenced in motion in limine #2 and motion in

limine #9.


Judgment affirmed.


Bailey, J. and Bradford, J., concur.




Court of Appeals of Indiana | Opinion 29A02-1511-CT-1949 | August 29, 2016   Page 13 of 13
