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FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: JAMES R. FISHER DEBRA H. MILLER Miller & Fisher, LLC Indianapolis, Indiana ATTORNEYS FOR APPELLEE: JAMES W. RILEY, JR. MARY K. REEDER ELIZABETH GREEN Riley Bennett & Egloff, LLP Indianapolis, Indiana JOHN M. ROCHE KEVIN S. TAYLOR JARED E. BERG Taylor Anderson LLC Denver, Colorado

FILED
Sep 07 2010, 10:12 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
DAVID HATTER and KRISTINA HATTER, ) ) Appellants-Plaintiffs, ) ) vs. ) ) PIERCE MANUFACTURING, INC., ) ) Appellee-Defendant. )

CLERK

No. 49A02-0907-CV-659

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Patrick L. McCarty, Judge Cause No. 49D03-0307-CT-1189

September 7, 2010 OPINION - FOR PUBLICATION ROBB, Judge

Case Summary and Issues While working as a Pike Township firefighter, David Hatter was injured when the cap on a fire truck's rear intake pipe was propelled off the pipe by pressurized air and the cap struck Hatter in the face. Hatter and his wife Kristina brought this products liability action against Pierce Manufacturing, Inc. ("Pierce"), the manufacturer of the fire truck. Following a jury trial and verdict in favor of Pierce, Hatter appeals.1 Hatter presents for our review the following restated issues: 1) whether the trial court abused its discretion by failing to strike two jurors for cause; 2) whether the trial court abused its discretion in the giving of two jury instructions; 3) whether the trial court abused its discretion by excluding certain evidence; 4) whether the trial court erred by denying Hatter's motion for judgment on the evidence as to the fault of two non-parties; and 5) whether the trial court erred by dismissing Kristina's loss of consortium claim as a sanction for a discovery violation. Regarding Hatter's jury selection issue, we conclude Hatter failed to exhaust one of his peremptory challenges and has failed to show that both of his challenges for cause were improperly denied. Further concluding the trial court did not abuse its discretion in its instruction of the jury or in excluding evidence, and finding no other error, we affirm. Facts and Procedural History2 In 1994, the Pike Township Fire Department ("PTFD") ordered two fire trucks from Pierce, including the one at issue in this case, Engine 113. A PTFD procurement committee,

For ease of discussion, while Kristina is also a party to this appeal, we will refer to the appellants, collectively, as Hatter where appropriate.

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led by firefighter Rickey McKinney, submitted forty-eight pages of specifications to Pierce through the dealer, Midwest Fire and Safety Company, Inc. ("Midwest"). When the trucks were finished in 1995, McKinney and other firefighters traveled to Pierce's manufacturing facility, where they inspected the trucks and were satisfied that all the specifications were met. PTFD, not Pierce, trained its firefighters in the use of the trucks. Engine 113 was a pumper truck with two large-diameter horizontal intake pipes, one opening at the front and one opening at the rear of the truck, with each opening connectable by a hose to a fire hydrant. The opening of the rear intake pipe, known as the rear intake port, was located about five feet above the ground, at head height. Inside the fire truck, the front and rear intake pipes were connected as a single, continuous, five-inch diameter pipe. A T-connection located near the middle of the piping brought water from either intake pipe into a vertical pipe leading to an interior reservoir; the reservoir would pump water at various pressures to outlets connected to fire hoses. The rate at which pressurized water entered the reservoir from either intake pipe was controlled by a butterfly valve inside the piping, located between the intake port and the reservoir, a few feet on either side of the T-connection. Each butterfly valve was adjusted by turning its own control wheel at the fire truck operator's station, ten complete turns between fully closed and fully open. When either the front or rear intake pipe was not in use, its corresponding butterfly valve typically remained closed and its intake port capped.

We heard oral argument on July 28, 2010, in Indianapolis. We thank counsel for their able presentations.

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Hatter alleged the following aspects of the piping design rendered Engine 113 unreasonably dangerous. Because the front and rear intake pipes were connected, when a pressurized hydrant was connected to the front intake port, pressurized water would not only flow through the front intake pipe to the reservoir, it would also travel backwards through the rear intake pipe as far as it was able to go. With the front butterfly valve opened, pressurized water would flow past the T-connection and into the rear intake pipe until it reached the rear butterfly valve, where it would remain under pressure as long as the pressurized hydrant was connected to the front intake. So long as the rear butterfly valve remained closed, the fifteen feet of pipe between the rear butterfly valve and the rear intake port would be filled with air at atmospheric pressure. If, however, the rear butterfly valve were inadvertently opened, the laws of physics would require the pressure on either side of the valve to immediately equalize. As a result, the air in the rear intake pipe would be compressed to the same pressure as the water pressure from the hydrant connected to the front intake. If the rear butterfly valve were then closed, the pressurized air between the rear butterfly valve and the rear intake port would remain trapped under pressure, even after the fire truck was disconnected from the hydrant. After the incident, PTFD firefighter David Estes determined that this mechanism caused Engine 113's rear intake pipe to become, in effect, a pressurized air cannon. The rear intake pipe could have been harmlessly depressurized in two ways: opening the rear butterfly valve, or opening an "air bleed" valve located inside the rear intake pipe aft of the rear butterfly valve. Transcript at 298. The parties disputed at trial whether such a

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depressurization should have been accomplished during Engine 113's weekly inspection done two days before the incident. The protocol for such inspections called for operation of the rear air bleed, and the PTFD log book for Engine 113 showed no activity between the Monday inspection and the Wednesday incident that could have resulted in pressurization during that intervening time. Hatter argued, however, that because the activities routinely recorded in the log book did not include all instances of using an intake pipe to fill Engine 113's tank, the pressurization may well have occurred at some point following the Monday inspection. However, the parties agreed there was no protocol for an inspection aimed specifically at ascertaining the pressurization of the rear intake pipe. Rather, Pierce concedes "[d]eposition and trial testimony established that no one had ever heard of an inlet pipe becoming pressurized." Appellee's Brief at 10. It was also undisputed that the injury-causing potential of pressurization of the rear intake pipe would differ based on whether the cap on the rear intake port was a threaded cap or a quick-release cap. PTFD's specifications called for a threaded cap, and Engine 113 was delivered with a threaded cap. Like a cap on a two-liter soda bottle, a threaded cap detaches only after several turns. If a threaded cap is unscrewed from a pipe under pressure, the pressurized air or water will escape gradually as the cap is turned. After Engine 113 arrived in Pike Township, and without informing Pierce, PTFD replaced the threaded cap with a quick-release or "Storz" cap. Tr. at 125.3 A quick-release cap is removed by pushing two

The quick-release cap was manufactured by Angus Fire, and PTFD purchased it through the dealer, Midwest. Pierce also sells both the threaded and quick-release caps, and a Pierce pumper truck can be ordered with either one.

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levers and turning the cap a quarter-turn to the left, which makes the cap come off as soon as it is loosened; thus, a quick-release cap is "either on or off." Id. at 191. Any pressure in the pipe will be released suddenly and may propel the quick-release cap away from the pipe with proportionate force. On September 19, 2001, Hatter was on duty and responded to a fire call. Initially rookie firefighter Amanda Burt attempted to remove the quick-release cap in order to connect the rear intake port to a hydrant. Having difficulty doing so, Burt found Hatter, who also could not remove the cap through manual strength. Hatter then found firefighter Neil Dorbecker, who was the engineer operating Engine 113 that day. Dorbecker grabbed two spanner wrenches, which are designed to fit around and remove a quick-release cap, and went with Hatter to the back of the truck. As Dorbecker loosened the cap, Burt, who was standing next to Hatter, heard a "loud boom." Id. at 352. Hatter was struck in the face by the quick-release cap and "flew back about 10 feet and fell to the ground." Id. Hatter suffered fractured facial bones and was taken by ambulance to the hospital. PTFD investigated the incident through firefighter Estes, who testified he did some of the maintenance on Engine 113 himself and prior to the incident "spent many hours under the truck looking at how it's plumbed and how different things work." Id. at 268. Estes was unaware prior to the incident of the possibility of pressurization of the rear intake pipe. However, evidence was presented at trial that firefighters' difficulty in removing a quickrelease cap may be a sign that the pipe beneath the cap is pressurized. Immediately after the incident, Estes was able to visualize "the plumbing of the rear inlet" and hypothesize that

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pressurized water from a hydrant could compress the air in the rear fifteen feet of pipe, such that "if that valve got closed

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