                                                                        FILED
                                                                    Jun 27 2019, 6:23 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
Anthony W. Patterson                                       Minh C. Wai
Michael L. Schultz                                         Kopka Pinkus Dolin, P.C.
Kent M. Frandsen                                           Crown Point, Indiana
Parr Richey Frandsen Patterson
Kruse, LLP
Indianapolis, Indiana
James D. Moore
Kathryn J. Cook
Ryan, Moore, Cook, Triplett &
Albertson, LLP
Frankfort, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

The Estate of Charles D.                                   June 27, 2019
Benefiel, by and through its Co-                           Court of Appeals Case No.
Personal Representatives,                                  18A-CT-2527
Michael D. Benefiel and Andrea                             Appeal from the Clinton Circuit
D. Kessner, and The Estate of                              Court
Linda D. Benefiel, by and                                  The Honorable Bradley K. Mohler,
through its Co-Personal                                    Judge
Representatives, Michael D.                                Trial Court Cause No.
Benefiel and Andrea D. Kessner,                            12C01-1601-CT-55
Appellants-Plaintiffs,

        v.

Wright Hardware Co., Inc.,
Appellee-Defendant.


Court of Appeals of Indiana | Opinion 18A-CT-2527 | June 27, 2019                           Page 1 of 14
      Riley, Judge.


                                 STATEMENT OF THE CASE
[1]   Appellants-Plaintiffs, The Estate of Charles D. Benefiel, by and through its Co-

      Personal Representatives, Michael D. Benefiel and Andrea D. Kessner, and the

      Estate of Linda D. Benefiel, by and through its Co-Personal Representatives

      Michael D. Benefiel and Andrea D. Kessner (collectively, the Estate), appeal

      the verdict in favor of Appellee-Defendant, Wright Hardware Co., Inc. (Wright

      Hardware), in a negligence case arising out of a propane gas explosion wherein

      Charles and Linda Benefiel were killed.


[2]   We reverse and remand for a new trial.


                                                     ISSUES
[3]   The Estate raises three issues on appeal, which we consolidate and restate as:

      Whether the trial court abused its discretion in permitting a defense expert

      witness to read verbatim into evidence an opinion set forth in an email to the

      defense expert witness.


                       FACTS AND PROCEDURAL HISTORY
[4]   This appeal follows a defense verdict in a negligence case arising out of a

      propane gas explosion that killed Charles and Linda Benefiel in their rural

      Clinton County residence. The Benefiel home was built in 1983 and, at the

      time of the explosion, the residence used propane gas service for heat and to

      fuel other gas appliances in their home. Beginning in 2000, the Benefiels

      Court of Appeals of Indiana | Opinion 18A-CT-2527 | June 27, 2019        Page 2 of 14
      became customers of Wright Hardware when Wright Hardware installed a 500-

      gallon liquid propane gas tank at the residence.


[5]   On October 19, 2015, at 9:37 a.m., Wright Hardware employee Chuck Watkins

      received a call from the Benefiels, complaining they had no heat in the

      residence. William Taylor (Taylor) responded to the complaint and discovered

      the control board and gas valve were no longer functioning. He replaced both

      components. To complete the replacement, Taylor shut the gas off at the gas

      shut-off valve for the furnace, which terminated the gas service to the furnace

      only and left the gas on everywhere else in the house. He then disconnected the

      piping from the furnace. After reassembling the piping, Taylor used a

      manometer to test the flow pressure to the manifold to ensure the pressure was

      correct for the furnace. He tested the regulator on the new gas valve to check it

      was consistently producing the required pressure. In addition, he sniffed

      around the area and failed to detect any propane in the immediate vicinity.

      Finally, Taylor soap-tested the pipe fittings, but did not perform a leak test. Not

      finding any leaks, Taylor turned the gas on to cycle through the furnace a few

      times.


[6]   On October 21, 2015, Wright Hardware delivered propane gas to the Benefiels’

      residence and filled the tank to eighty percent capacity. Two days later, on

      October 23, 2015, an explosion occurred which was followed by a fire, creating

      a debris field of 150 to 200 feet away from the residence. The home was

      substantially destroyed along with the surrounding buildings. It is not disputed

      by the parties that the explosion was caused by propane gas, which had been

      Court of Appeals of Indiana | Opinion 18A-CT-2527 | June 27, 2019         Page 3 of 14
      sold by Wright Hardware to the Benefiels, and which had leaked inside the

      residence.


[7]   Following the explosion, various experts investigated the incident in an effort to

      determine the occurrence of the leak and the causation of the explosion and

      fire. The explosion’s magnitude made it impossible to ascertain the source of

      the leak, the ignition incident, or actual cause of the explosion. Nevertheless,

      the experts agreed that the explosion had been caused by propane gas of

      undetermined origin, and although the source of the leak could not be isolated,

      the leak had originated inside the house.


[8]   Propane gas is flammable and dangerous; it is heavier than air and tends to pool

      in low places when it is released. Unlike other gases, it builds up over time if

      there is no air to move it and reaches an explosive level when it finds an

      ignition source. Several sets of standards and codes govern propane gas

      systems. The National Fire Protection Association (NFPA) 58 instituted a set

      of standards dealing with liquid petroleum gas installations which apply to

      piping outside the house. The International Fuel Gas Code (IFGC), published

      by the International Code Council, applies to propane or natural gas piping

      inside the house. Although Indiana has largely adopted the 2012 edition of the

      IFGC, the legislature has incorporated significant revisions and added

      provisions. See I.C. § 22-13-2-2; 675 Ind. Admin. Code 25-3-1 et seq. To reduce

      the risk of a propane explosion, the codes require that certain tests, including

      pressure tests and leak tests, be performed under certain circumstances.

      Together, the pressure tests and leak test confirm whether the entire system is

      Court of Appeals of Indiana | Opinion 18A-CT-2527 | June 27, 2019          Page 4 of 14
      “gas tight,” i.e., not leaking. (Transcript Vol. III, p. 242). Section 4.6.6.3 of the

      IFGC, adopted in Indiana, provides that a leak test of the piping system shall be

      performed after a new installation or if there has been an “interruption of

      service.” However, no statutory definition of what constitutes an interruption

      of service is included.


[9]   On January 25, 2016, the Estate filed its Complaint for Damages sounding in

      negligence against Wright Hardware. On September 17, 2018, a five-day jury

      trial commenced. The Estate’s theory of liability focused on Wright

      Hardware’s failure to perform leak testing of the Benefiel home after Taylor

      replaced the control board and gas valve. According to the Estate, Taylor’s

      work on the Benefiel’s furnace by turning the gas shut-off valve constituted an

      interruption of service that required leak testing pursuant to the relevant

      provisions of the Indiana Fuel Gas Code (Ind. FGC). During the trial, several

      plaintiff and defense experts testified. The Estate’s experts opined that Taylor

      needed to leak test the Benefiel gas system because shutting off the gas at the

      shut-off valve constituted an interruption of service. On the other hand, Wright

      Hardware’s expert informed the jury that leak testing was not necessary because

      no interruption of service had occurred. In support of this opinion, Wright

      Hardware’s expert, Todd Hetrick (Hetrick), had contacted the International

      Code Council (ICC), the drafters of the IFGC, and requested their

      interpretation of interruption of service, by posing an hypothetical fact pattern

      identical to this cause. More specifically, Hetrick questioned




      Court of Appeals of Indiana | Opinion 18A-CT-2527 | June 27, 2019          Page 5 of 14
               [w]here the Code uses the term ‘interruption of service,’ does this
               refer only to an interruption in fuel gas supply to the point of
               delivery (i.e., an outage of fuel gas supply from an onsite tank or
               utility to a customer’s property), or does this term refer more
               broadly to also include a lack of fuel gas supply to a branch or
               isolated section of the piping system existing within a built
               structure, downstream of the point of delivery? Please provide
               guidance to define the term ‘interruption of service.’


       (Appellant’s App. Vol. II, p. 74).


[10]   Gregg Gress (Gress), an employee of the ICC, responded to Hetrick’s inquiry

       by email dated May 11, 2018. The Estate objected to Wright Hardware’s

       questions regarding Hetrick’s inquiry with the ICC and Gress’ response. Over

       the Estate’s objection, the trial court permitted Hetrick to read verbatim into

       evidence the first question and only the first sentence of Gress’ response that

       defined interruption of service as “the utility has shut off the supply at the point

       of delivery, or an onsite fuel tank has been depleted.” (Appellant’s App. Vol.

       II, p. 77). In addition, Hetrick was permitted to read the second and third

       question, but was prohibited from reading any of Gress’ responses. Hetrick was

       merely allowed to inform the jury that Gress’ responses confirmed his own

       opinion. At the conclusion of the evidence, the jury rendered a verdict in favor

       of Wright Hardware, which was entered by the trial court on September 21,

       2018.


[11]   The Estate now appeals. Additional facts will be provided if necessary.




       Court of Appeals of Indiana | Opinion 18A-CT-2527 | June 27, 2019             Page 6 of 14
                                DISCUSSION AND DECISION
[12]   The Estate contends that the trial court abused its discretion by admitting

       certain testimony by Wight Hardware’s expert. Focusing on Hetrick’s reading

       of Gress’ opinion of the meaning of interruption of service, the Estate maintains

       that this testimony constituted inadmissible hearsay, offered for its truth, and

       was prejudicial to the Estate’s rights to a fair verdict.


[13]   The standard of review for admissibility of evidence is abuse of discretion.

       Weinberger v. Boyer, 956 N.E.2d 1095, 1104 (Ind. Ct. App. 2011), trans. denied.

       The trial court abuses its discretion only when its action is clearly erroneous

       and against the logic and effect of the facts and circumstances before the court.

       Id. Even when the trial court erred in its ruling on the admissibility of evidence,

       this court will only reverse if the error is inconsistent with substantial justice.

       Id. To determine whether the admission of evidence affected a party’s

       substantial rights, we assess the probable impact of the evidence upon the finder

       of fact. In re Des. B., 2 N.E.3ds 828, 834 (Ind. Ct. App. 2014).


[14]   At the heart of this appeal is the direct testimony by Wright Hardware’s expert,

       Hetrick, regarding his investigation of the explosion. As part of his

       investigation, Hetrick reached out to the ICC in request for a staff opinion. In

       his email, Hetrick “asked [the ICC] [] what they meant by interruption of

       service.” (Tr. Vol. V, p. 58). Gress, ICC’s employee, responded to Hetrick’s

       email. The response supported Wright Hardware’s position that a leak test was

       not required under the circumstances presented here, and therefore no


       Court of Appeals of Indiana | Opinion 18A-CT-2527 | June 27, 2019            Page 7 of 14
negligence had been incurred. During direct testimony, counsel for Wright

Hardware sought to question Hetrick as to each question he had queried to the

ICC and the verbatim answer he received. The Estate objected, advising


        We object to the testimony that counsel has just sought to illicit.
        He’s asked the witness to step through question and
        answer/question and answer to a letter that the witness sent to
        the [ICC]. We’ve been supplied with a copy of the letter. We
        have it. It is in his supplemental opinion. [] [A]nd then we have
        what they wrote back. What we don’t have is the witness or the
        person who is rendering this opinion that they sent back to
        [Hetrick]. If you – it’s as simple as looking at the website of the
        [ICC] and look through what they say about written staff
        opinions. And it gives you the procedure on how you do it and
        that’s clearly what [Hetrick] has done here. And staff code – but,
        it says right below that “Staff code opinions issued by the ICC
        Technical staff do not represent the official position of the
        International Code counsel. The final authority of code opinions
        is the responsibility of the code official. Staff opinion is not
        intended to influence the code official.” So you know, it’s
        hearsay. He’s asking for someone who works at the [ICC] to
        answer these questions and we’re not able to cross examine that –
        that witness and so it’s inappropriate; reliance material and
        inappropriate of the [c]ourt’s statement that’s being offered for
        the truth of the matter asserted therein.


(Tr. Vol. V, p. 60). Characterizing the interpretation of interruption of service

as the “million dollar question everybody wants to know,” the trial court noted

that a “brief definition [] is really needed for the jury to make a decision” and

ruled that


        That one sentence definition [of interruption of service] I’m going
        to allow to be read in. The other[] [questions], they get more

Court of Appeals of Indiana | Opinion 18A-CT-2527 | June 27, 2019         Page 8 of 14
               specific in facts applying to the case. I think those really more
               are for the jury to decide. I will allow those questions to be
               relayed and you can question as we discussed, but I’m not going
               to allow the verbatim answers to be read. But, I do want that
               interruption of service definition in.


       (Tr. Vol. V, pp. 64, 74, & 75). The Estate now claims that Hetrick’s expert

       testimony merely served as an improper vehicle to present the otherwise

       inadmissible hearsay evidence of Gress’ definition in front of the jury.


[15]   Hearsay, like Gress’ definition before us, is an out-of-court statement offered to

       prove the truth of the matter asserted therein, which rests on the credibility of

       the out-of-court declarant who is unavailable for cross-examination. Ind. Evid.

       Rule 801(c). Hearsay is inadmissible unless the rules of evidence or other law

       provide otherwise. Evid. Rule 802. As such, inadmissible evidence may

       nevertheless be relied upon for the purposes of expert-rendered opinion

       testimony. As provided in Evidence Rule 703, “Experts may testify to opinions

       based on inadmissible evidence, provided that it is of the type reasonably relied

       upon by experts in the field.”


               Earlier Indiana cases, and other courts governed by Rule 703,
               generally have found the following sorts of information to be
               reasonably relied upon by experts in various fields: hospital
               records, laboratory reports, X-rays, and doctors’ medical records
               relied on by medical professionals; reports by subordinates relied
               upon by superiors; discussions with other experts in the expert’s
               field; mental hospital records reports by clinical psychologists
               and social workers, and police reports relied upon by
               psychiatrists or forensic psychologists; a report from an
               engineering firm relied upon by an engineer; an autopsy report

       Court of Appeals of Indiana | Opinion 18A-CT-2527 | June 27, 2019           Page 9 of 14
               relied upon by a pathologist; business records relied upon by an
               expert in the business field; and state agency records relied upon
               by a law enforcement officer.


               Courts have shown considerable reluctance to find reasonable
               reliance on information not prepared by persons with specialized
               training, such as lay witness statements, anonymous reports,
               statements by a party, and data prepared in anticipation of
               litigation.


       Schmidt v. State, 816 N.E.2d 925, 938-39 (Ind. Ct. App. 2004) (quoting 13

       ROBERT LOWELL MILLER, JR., INDIANA PRACTICE, INDIANA EVIDENCE §

       703.107, 427-30 (footnotes omitted)).


[16]   There are limits to this, however, to the extent that a party proffers opinion

       testimony that is merely “a conduit” for placing “physician’s diagnoses into

       evidence without meaningful opportunities for cross-examination.” Faulkner v.

       Markkay of Indiana, Inc., 663 N.E.2d 798, 801 (Ind. Ct. App. 1996), trans. denied.

       As our supreme court has recognized,


               Some experts customarily gather information from a variety of
               other experts and authoritative sources and rely upon it in
               reaching their opinions. When an expert witness’s own
               independent opinion is arrived at in this manner and it is
               introduced into evidence and the expert witness is subject to
               cross-examination, that part of the substrata of information
               which aided in the formation of the opinion, though hearsay in
               nature and though not falling within any hearsay exception, may
               nevertheless be admissible for use by the trier of fact in judging
               the weight of the opinion.




       Court of Appeals of Indiana | Opinion 18A-CT-2527 | June 27, 2019        Page 10 of 14
       Barrix v. Jackson, 973 N.E.2d 22, 26 (Ind. Ct. App. 2015) (quoting Miller v. State,

       575 N.E.2d 272, 274 (Ind. 1991)), trans. denied. However, such hearsay is

       inadmissible where it is merely a restatement of another’s conclusion “as a

       conclusory answer to an ultimate fact in issue,” such that the veracity of the

       statement is not “subject to the test of cross-examination.” Id. Accordingly,

       although an expert may rely on others’ opinions as a basis for his opinion if

       other experts in the field reasonably rely on such opinions, the expert must

       bring his own expertise to bear in reaching his opinion and may not simply

       repeat opinions of others or announce that other experts concur with his

       opinion with respect to the case. Duneland Props., LLC v. Northern Indiana Pub.

       Serv., Co., 14 N.E.3d 95, 105 (Ind. Ct. App. 2014).


[17]   In support of its argument that it was impermissible for Gress’ hearsay opinion

       to be admitted, the Estate refers this court to Faulkner v. Markkay of Indiana, Inc.,

       663 N.E.2d 798 (Ind. Ct. App. 1996), trans. denied, a slip and fall case involving

       the testimony of a chiropractor as an expert witness. Faulkner requested to

       introduce into evidence a compilation of medical records generated by other

       health care providers through the chiropractor. Id. at 800. The trial court

       denied the admission of the evidence. Id. Finding that “a doctor of

       chiropractic does not have the same education, training or expertise as the

       physicians who prepared the reports,” and noting that “a comparison of the

       licensing statutes shows that chiropractors are given only limited licenses,

       whereas physicians receive unlimited licenses as to the entire medical field,” the




       Court of Appeals of Indiana | Opinion 18A-CT-2527 | June 27, 2019          Page 11 of 14
       Faulkner court affirmed the trial court’s exclusion of the medical reports. Id. at

       801 (internal footnote omitted).


[18]   We find Faulkner to be persuasive to the situation before us. Hetrick, a

       mechanical engineer, requested a “written staff code opinion” of the undefined

       term of interruption of service from the ICC. (Appellant’s App. Vol. II, p. 72).

       Gress, a member of the “Senior Technical Staff” at the Central Regional Office

       of the ICC, responded by email, providing Hetrick with a definition of

       interruption of service, which was tendered verbatim to the jury. (Appellant’s

       App. Vol. II, p. 77). However, this opinion is “advisory” only, and was not

       approved by the legal staff at the ICC. (Appellant’s App. Vol. II, p. 77).

       Furthermore, whereas Indiana’s Legislature adopted the IFGC with significant

       changes, most notably in what constitutes ‘piping’ pursuant to the Code, Gress’

       opinion is solely “based on ICC-published codes and do[es] not include local,

       state or federal codes, policies or amendments.” (Appellant’s App. Vol. II, p.

       77). Ultimately, Gress cautioned that “the final decision is the responsibility of

       the designated authority charged with the administration.” (Appellant’s App.

       Vol. II, p. 77).


[19]   Hetrick explained to the jury that because the IFGC did not define the term, he

       reached out to the ICC “in request for a staff opinion.” (Tr. Vol. V, p. 58).

       Hetrick affirmed that he received a reply and read to the jury verbatim the

       definition of interruption of service provided by Gress. Although it is clear that

       Gress is not a member of ICC’s legal department, no evidence of Gress’

       educational background, qualifications, or expertise was introduced, besides the

       Court of Appeals of Indiana | Opinion 18A-CT-2527 | June 27, 2019        Page 12 of 14
       fact that he is an employee of the ICC. Rather, it appears that Gress

       represented his own non-binding interpretation of a legal term within the

       context of the ICC only, and did not interpret the term within the context and

       revisions of the Indiana Code. The reliability of the interpretation, as well as

       the expertise of Gress, could not be challenged through cross-examination.

       Accordingly, without being informed of Gress’ qualifications or Gress himself

       being available for cross-examination, we cannot say that Gress’ opinion could

       be reasonably relied upon by Hetrick.


[20]   Moreover the admission of the verbatim definition was prejudicial to the Estate

       and constituted reversible error. Termed “the million dollar question,” and

       battled over by experts on both sides, the jury was handed a definition of

       ‘interruption of service’ which was represented to be issued by the entity that

       also wrote the Code and purported to provide a definitive answer on an

       ultimate issue. (Tr. Vol. V, p. 64). During closing argument, counsel for

       Wright Hardware explained to the jury that because there was a disagreement

       on the definition, Hetrick contacted the ICC to “please help us to find what

       interruption of service is[.]” (Tr. Vol. V, p. 168). As such the jury was given

       the impression that this definition, interpreting the IFGC, was cloaked with

       authority to equally define the term in the Indiana Code. It was only after

       Gress’ opinion was read verbatim that Hetrick affirmed that his own opinion

       aligned with the definition provided by Gress. Viewed in the totality of the trial

       proceedings, Hetrick’s testimony in essence amounted to nothing more than a




       Court of Appeals of Indiana | Opinion 18A-CT-2527 | June 27, 2019        Page 13 of 14
       mere conduit to get otherwise inadmissible hearsay evidence in front of the

       jury.


                                              CONCLUSION
[21]   Based on the foregoing, we hold that the trial court’s admission of a verbatim

       hearsay opinion which was read into evidence by the defense expert witness

       was prejudicial to the Estate and amounted to reversible error.


[22]   Reversed and remanded for a new trial.


[23]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Opinion 18A-CT-2527 | June 27, 2019      Page 14 of 14
