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FILED
Feb 12 2009, 8:52 am

FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: BRUCE P.CLARK JENNIFER K. DAVIS Bruce P. Clark & Associates Munster, Indiana

of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GEORGE T. PATTON, JR. BRYAN H. BABB Bose McKinney & Evans LLP Indianapolis, Indiana A. LEON SARKISIAN KATHLEEN E. PEEK Sarkisian Law Offices Merrillville, Indiana

IN THE COURT OF APPEALS OF INDIANA
LARRY COX and TUBE CITY, LLC, d/b/a OLYMPIC MILL SERVICES, Appellants-Defendants, vs. ALLEN MATTHEWS, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) )

No. 45A05-0803-CV-183

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Calvin D. Hawkins, Judge Cause No. 45D04-0501-CT-14

February 12, 2009 OPINION--FOR PUBLICATION

BAKER, Chief Judge Appellants-defendants Larry Cox and Tube City, LLC d/b/a Olympic Mill Services (collectively, Tube City), appeal from the trial court`s judgment holding Tube City liable for negligence and ordering it to pay $4,126,529 in damages to appelleeplaintiff Allen Matthews. Specifically, Tube City argues that the trial court erred by allowing the expert testimony of Anthony Gamboa, Ph.D. In addition, Tube City

maintains that the jury`s verdict and allocation of damages is clearly against the weight of the evidence. Furthermore, Tube City asserts that the trial court improperly instructed the jury regarding the absence of Cox and documents relating to Cox`s employment. Finally, Tube City maintains that the trial judge was improperly appointed in violation of the Indiana Trial Rules. Matthews cross-appeals, claiming that this appeal must be dismissed because Tube City`s brief was not timely filed. Finding no error, we affirm the judgment of the trial court. FACTS1 On May 10, 2004, Matthews, age 30, was working as a stocker at Beta Steel in Portage, Indiana. Cox was an employee of Tube City, which provides personnel and equipment to perform tasks that are ancillary to a steel mill`s primary function. Cox was assigned to provide services to Beta Steel.

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We heard oral argument on January 7, 2009. presentations.

We would like to thank counsel for their able

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At approximately 7:00 a.m., Matthews arrived for the day shift. He worked with a forklift moving 2,000 pound bags of dololime that he hooked to a charger bucket each hour while the Tube City loader, operated by Cox, was working in the nearby slag pit. Around 9:00 a.m., Matthews picked up the third load of dololime with his forklift from the east bay and proceeded to take the bags to the scrap pit and header bucket. When Matthews reached the bucket, he stopped the forklift, engaged the safety brake, and proceeded to the front of the forklift. Matthews was able to strap the first bag up; however, as he began to hook the second bag, he was struck by the front loader operated by Cox and was crushed into a wooden pallet, breaking it from the impact. When the front loader pulled away, Matthews fell and had no feeling in his legs. Matthews was transported to Porter Memorial Hospital, where he was examined by the emergency room doctor, a trauma surgeon, and an orthopedic surgeon. As a result of being crushed by the front loader, Matthews suffered multiple pelvic fractures, hematomas, subcutaneous contusions, and an open book injury, which results when the force is so great that it causes the joints to peel apart as if you are opening a book. Tr. p. 42. Dr. Ron Clark, an orthopedic surgeon, examined Matthews in June, July, August, September, October, and November when a functional capacity evaluation was conducted. In December, Dr. Clark determined that Matthews had a 15% whole body impairment, and a 3% right/left lateral impairment, with restrictions of lifting 84 pounds floor to waist, 44 pounds floor to shoulders, and 34 pounds floor to overhead. Matthews

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was allowed to return to work with the above restrictions and no walking for more than fifteen minutes without rest. In March 2005, Matthews returned to Dr. Clark, and an MRI showed that the right pelvis at the SI joint was permanently abnormal and arthritic. Permanent work

restrictions were imposed similar to the earlier restrictions, with the addition that Matthews use a cane when climbing stairs; however, Dr. Clark did not think that there was anything more that could be done to help Matthews because of the extensive damage to the joints. In January 2006, Matthews saw Dr. Anton Thompkins, an orthopedic spine surgeon, for back, gluteal, thigh, and groin pain that he had been experiencing for a couple of years. Dr. Thompkins testified that there`s not a great treatment for S.I. joint injuries that are chronic in nature. Id. at 116. In May 2007, Matthews was evaluated by Dr. Darryl L. Fortson, who concluded that Matthews had a 24% whole person impairment. Dr. Fortson noted that Matthews was blessed by God to be alive. He was crushed by an accelerating vehicle whose weight is measured in tons and not surprisingly, he suffered a major fracture in his pelvic rami. Plaintiff`s Ex. 18 p. 3. On January 24, 2005, Matthews filed a complaint against Tube City and its employee Cox, alleging that Cox, while acting within his scope of employment, negligently operated an industrial vehicle that collided with Matthews. Matthews

maintained that as a direct and proximate result of Cox`s negligence, Matthews sustained

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serious and permanent bodily injuries.

Matthews sought past and future medical

expenses, past and future pain and suffering, and past and future lost wages. After a lengthy discovery process, a jury trial was set for December 4, 2007. On December 2, Tube City`s counsel discovered that Matthews`s counsel had represented the trial judge`s spouse in an unrelated matter. On December 3, counsel for both sides joined in a conference call to the court. The trial judge informed counsel that he had already spoken with the chief judge regarding the issue and that a new judge would be ready to preside over the case the next day. Counsel subsequently received an order dated

December 3, 2007, advising of Judge Calvin D. Hawkins`s appointment. At the jury trial, which commenced on December 4, 2007, Dr. Gamboa, a vocational economist, testified that the present value of Matthews`s future lost earning capacity was between $656,412 and $821,056. In addition, Dr. Gamboa concluded that Matthews was occupationally disabled and would lose seven years of his working life. On December 7, 2007, the jury returned a verdict in favor of Matthews. Specifically, the jury found that Matthews was 5.83% at fault, Tube City was 94.17% at fault, and Beta Steel was 0% at fault. The jury assessed damages in the amount of $4,382,000. After the total amount was reduced by Matthew`s percentage of fault, Matthews was awarded $4,126,529. On January 7, 2008, Tube City filed a motion to correct error, alleging that the testimony of Dr. Gamboa was improperly admitted, that the verdict was excessive and not supported by the evidence, and that the procedure for the appointment of Judge

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Hawkins was improper. On February 28, 2008, after hearing oral argument, the trial court denied the motion to correct error. Tube City now appeals. DISCUSSION AND DECISION I. Cross-Appeal: Belated Brief Before proceeding to the merits of Tube City`s claims, we first address Matthews`s cross-appeal. Matthews argues that this appeal should be dismissed because Tube City filed its brief four days late. Tube City responds that we should affirm the decision of the motions panel, which granted its motion to file a belated brief.2 In support of this contention, Tube City maintains that at most, its brief was only one business day late because the trial court did not mail its notice of completion of the transcript until June 11, 2008, and therefore, the brief was not due until July 11, 2008. Because the brief was filed on Monday, July 14, Tube City asserts that its brief was only one business day late. Moreover, Tube City maintains that counsel consulted the Indiana Rules of

Appellate Procedure and, while counsel`s interpretation of these rules may have been faulty, it did not constitute a flagrant violation of the appellate rules of procedure. Indiana Appellate Rule 45(D) provides that [t]he appellant`s failure to file a timely appellant`s brief may subject the appeal to summary dismissal. Dismissal for the late filing of an appellant`s brief is within the discretion of the court rather than mandatory. Howell v. State, 684 N.E.2d 576, 577 (Ind. Ct. App. 1997). Because the
On August 26, 2008, the motions panel granted Tube City`s motion to file a belated brief. It is well settled that this court has the inherent authority to reconsider any order of the motions panel while the appeal remains in fieri. Cincinnati Ins. Co. v. Young, 852 N.E.2d 8, 12 (Ind. Ct. App. 2006). However, in the absence of clear authority suggesting that the motions panel erred as a matter of law, we will not overrule such orders. Id.
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court prefers to decide cases upon their merits, when violations are comparatively minor, are not a flagrant violation of the appellate rules, and there has not been a failure to make a good faith effort to substantially comply with those rules, the appeal will be allowed. Haimbaugh Landscaping, Inc. v. Jegen, 653 N.E.2d 95, 99 (Ind. Ct. App. 1995). Here, Tube City contends that it made a good faith effort to substantially comply with the rules because it was only one business day late filing its brief. As noted above, this conclusion is based on Tube City`s assertion that the trial court clerk did not issue its notice until June 11, 2008, which would have made its brief due on Friday, July 11, 2008. Tube City submitted its brief on Monday, July 14, thus making the brief only one business day late. Tube City also points out that after consulting Appellate Rule 25(C), counsel concluded that there were three extra days in which to file the brief. Moreover, counsel consulted Appellate Rule 45(B)(1)(b), which did not specifically exclude the three-day mail rule allowed by Rule 25(C), as do other rules, including Appellate Rules 54(B) and 57(C). As we will explain later, we agree with Tube City`s assertion that it made a good faith effort to substantially comply with the rules and that its violation was not flagrant; however, we disagree with several of the premises which Tube City uses to reach this conclusion. First, we cannot agree with Tube City`s argument that the trial court clerk did not issue its notice of completion of the transcript until June 11, 2008, and that, consequently, its brief was not due until July 11, 2008. Appellate Rule 10(D) mandates that the trial court clerk or Administrative Agency shall issue and file a Notice of Completion of Transcript, and Appellate Rule 45(B)(1) provides in relevant part that 7

[t]he appellant`s brief shall be filed no later than thirty (30) days after . . . the date the trial court clerk or Administrative Agency issues its notice of completion of the Transcript. Here, the record indicates that the notice of completion of transcript was filed with this court on June 10, 2008, and stated that the Transcript in this case has been completed on this 10th day of June, 2008. Appellants` App. p. 201. Thus, June 10, 2008, was the date on which the trial court clerk issued its notice of completion of the Transcript for purposes of Appellate Rules 10(D) and 45(B)(1). Nevertheless, Tube City contends that the trial court clerk`s online docket proves that the clerk did not issue the notice of completion of the transcript until June 11, 2008. Specifically, the trial court clerk`s online docket read: 06-11-2008 Issue: 06/11/2008 Service: Notice of Completion of Clerk`s Portion/Transcript Method: Serv. Certified Gary

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