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ATTORNEYS FOR APPELLANT Peter J. Rusthoven Joseph G. Eaton Paul L. Jefferson Indianapolis, Indiana ATTORNEYS FOR AMICUS CURIAE DEFENSE TRIAL COUNSEL OF INDIANA Kevin C. Schiferl Lucy R. Dollens Indianapolis, Indiana James D. Johnson Evansville, Indiana

ATTORNEYS FOR APPELLEES Robert J. Palmer Mishawaka, Indiana Steven T. Parkman South Bend, Indiana Richard L. LaSalvia South Bend, Indiana

______________________________________________________________________________
May 15 2008, 10:52 am

FILED
of the supreme court, court of appeals and tax court

In the

Indiana Supreme Court
_________________________________ No. 45S05-0711-CV-528 SPEEDWAY SUPERAMERICA, LLC,

CLERK

Appellant (Defendant below), v. GERALD AND MADELINE HOLMES, Appellees (Plaintiffs below). _________________________________ Appeal from the Lake Circuit Court, No. 45C01-0111-CT-389 The Honorable Lorenzo Arredondo, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 45A05-0506-CV-332 _________________________________ May 15, 2008 Boehm, Justice. In this case the prevailing party at trial discovered potentially highly relevant and favorable evidence ten days before trial but did not communicate the discovery to the opposing party until the first day of trial. The evidence was admitted, but posttrial testing revealed that the evi-

dence was not what it was represented to be. Under these circumstances, we hold that a motion to test the evidence filed within the time for a motion to correct error satisfies the diligence required of the opposing party to seek a new trial based on newly discovered evidence. We remand for a new trial. Facts and Procedural History On May 31, 2000, Gerald Holmes set out in his refrigerated truck to transport a load of cheese from Wisconsin to Michigan. His wife, Madeline, frequently traveled with him and was along for the ride. As was their custom, Gerald and Madeline stopped for the night at the halfway point, a truck stop in Lake County, Indiana. The following is a summary of Gerald's testimony. The morning of June 1, 2000 was clear and dry. Gerald rose early, purchased some coffee for Madeline and himself, and prepared his logbook for the day. Around 6:00 a.m., he pulled his truck up to the truck stop's fuel island. He placed a pump in the driver's side of his truck, then walked around the truck to place the "slave pump" in the passenger side. "When I did, I slipped and I fell. I came down on my knee and as I come down on my knee, I twisted and landed on my back and my feet went out from underneath me and they went up underneath the truck." As a result of the fall, "[m]y clothing was wet. My total buttocks was covered with diesel fuel." Gerald's back had struck the curb of the fueling island and his knee was "hurting really bad." At that point he saw "a black spot there next to the slave pump" that he "knew" was diesel fuel. He finished fueling and went inside to report his fall to the cashier. He was "frustrated" and "irate" and used many "choice words." The cashier explained that the manager would not be in the store for another hour or hour and a half, and that she would let the manager know of the incident. Gerald testified that he requested to make an incident report, and gave the cashier his contact information on a scrap piece of paper. He then returned to his truck for fifteen to twenty minutes to get clean pants, and proceeded to the shower area for another ten or fifteen minutes to clean up and change his pants. Madeline testified that she was sitting on the passenger side of the truck with her window rolled down. She saw Gerald fall, then left the truck to help him up and saw "a wet spot along the curb of the, where the pumps station is." 2

Financial records reflect that the purchase of fuel occurred between 6:50 a.m. and 7:04 a.m. Gerald and Madeline then left the Speedway station for their destination approximately five hours away. On the way to Michigan, Gerald noticed his knee starting to swell and called his trucking company's safety department to describe the incident. The following day, he sought treatment at an emergency room. He has since undergone physical therapy, epidural injections for back pain, and knee surgery. Gerald was not asked, and the record does not reveal, whether either Gerald or Speedway followed up on the information Gerald testified he left with the cashier. On November 13, 2001, Gerald and Madeline filed a complaint for damages against Speedway SuperAmerica, LLC, the owner of the truck stop. Three weeks before trial, Gerald and Madeline's original attorney, Richard LaSalvia, engaged Steven Parkman as co-counsel. Parkman met with Gerald and Madeline for the first time ten days before trial. At that meeting, Parkman asked whether they still had the jeans and boots Gerald was wearing when he fell. Madeline responded that "she believed she had the jeans but would have to look." Parkman asked them to bring the items to court. Parkman next met with Gerald and Madeline on Sunday, December 12, 2004, the day before the trial. They informed him that they had found the jeans and boots but had left them in the car. Parkman did not examine the jeans or boots. LaSalvia had not considered using the jeans or boots as trial exhibits. The trial began on December 13, 2004. On that morning, Parkman for the first time advised Speedway's counsel, Todd Conover, "that the Plaintiffs had brought the jeans and boots but had left them in the car and that we would be considering attempting to introduce those into evidence." Conover did not inspect the items at that time, and neither party notified the trial court of the possibility of new exhibits. 1 Gerald was called as a witness the next day. On direct examination, Parkman asked Gerald if he still had the jeans he was wearing on the day of the fall. Gerald answered that he had located them "this summer" and they were now in his pickup truck parked outside the courthouse. In the presence of the jury, Parkman then stated,
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The facts in the previous paragraph and this paragraph were not presented at trial and are taken from affidavits of Parkman and LaSalvia presented in opposition to Speedway's posttrial motions, described infra.

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I'm giving this notice to Mr. Conover so that if he will allow us to display them in your wife's testimony. But we'll move forward. They're not on the exhibit list. We will announce to the jury and the Court, so you'll have to maybe rule if he has an objection on that issue, your Honor. Parkman then resumed questioning Gerald on unrelated issues. While the jury recessed for lunch, the trial court held a bench conference on admission of the jeans. Parkman described the jeans as having a "stain somewhat dark and on the seat of the pants that goes all the way through the material of denim, and some staining, it appears, on the right leg." Parkman conceded that the jeans were not on the pretrial exhibit list. Conover objected to the introduction of the jeans: Judge, I'm going to object to the either the showing or introduction of the jeans in that we are way post-accident. It would be highly prejudicial, I think, and inflammatory. It could plant an idea in mind that this stain, whatever it may be, is diesel fuel. Secondly, had these been produced, we could have tested these to determine whether or not it was in fact diesel fuel. . . . [W]e're highly prejudiced and we did ask for anything that would be produced at trial. So, we'd have a chance to look at it and, specifically had it been produced, we could have, at some point, tested them. . . . There is a test for diesel fuel we've used before. To allow the jury to see it now, I think, would be inflammatory and extremely prejudicial. Who knows what inference they will draw from that and I think most importantly, the standard discovery rules say what he planned to introduce. This is not just a minor demonstrative piece of evidence that might have been overlooked. It's major. And I can't believe that it would take this long. The plaintiff just happened to have discovered these particular pair of jeans, you know? Is it the same pair of jeans? The condition and period of time that has lapsed, those jeans is highly questionable. The trial court ruled that it would admit both the jeans and the boots, but would "specifically prohibit any testimony or inference that the stain is, in fact, diesel fuel." The jury returned and Parkman resumed direct examination of Gerald. Gerald testified that he was wearing the jeans on June 1, 2000, and had not worn them since. Gerald testified that the jeans had a stain that was not present before June 1, 2000, and was a "result of what happened" on that date. He also testified that the boots had an "oil resistant, non skid surface," and that his company required him to wear that type of boot. He explained that the jeans had been forgotten in the barn after his younger brother cleaned out the truck when it was repossessed be-

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cause of Gerald's inability to work. He further testified that he "never got around to going through the stuff, and we were out in the barn and we found them." Madeline also testified that the jeans were those worn by Gerald when he fell, that they had no spots before the fall, and that Gerald and his grandchildren found them in the barn with some other trucking items that Gerald's brother had packed up. Madeline further testified that since the fall she had washed the jeans with "either mineral spirits or turpentine." Other evidence presented at trial challenged Gerald and Madeline's version of events and supported Speedway's theory that Gerald fell from his truck and did not slip on diesel fuel. Tabitha Maxwell was the cashier, and Joy Hudson was the station manager on June 1, 2000. At the time of the trial Maxwell was no longer a Speedway employee, but Hudson remained with Speedway. Hudson said she arrived early that day because it was the first of the month and "stick readings" needed to be performed in addition to her daily duties incident to the 6:00 a.m. shift change. Both Hudson and Maxwell testified that Hudson was at the store at the time of the alleged fall. Speedway's answers to interrogatories stated that Hudson was "on duty" at 6:00 a.m. that day. Speedway's shift change policy requires employees to "inspect the lot for oil spills, gasoline spills, miscellaneous debris, and/or any other circumstances that would give rise to slip, trip and fall types of incidents. . . . Any incident that could be deemed hazardous is to be handled immediately." Both Maxwell and Hudson testified that they followed this policy and had checked the lot within the half hour before 6:00 a.m. on June 1, 2000. Both said they were aware of no spill that morning. They also testified that Speedway employed a maintenance man whose shift began at 6:00 a.m. and who patrolled the lot hourly. No incident report was offered in evidence. Hudson testified that whenever a diesel spill was reported, Speedway required her to complete an incident report that included the identity of the customer, a description of the incident, and photographs taken by Hudson. Hudson testified that Speedway policy required her to mail all incident reports to corporate headquarters. Maxwell testified that the policy required her to notify her supervisor of all personal injury reports, and that the customer "would wait" for the supervisor. Both Hudson and Maxwell testified that failure to comply with this policy would cost them their jobs. Maxwell testified that in her ten months as a Speedway cashier, no customer had complained to her about a diesel spill. She also

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testified that she had no independent recollection of Gerald. Finally, Gerald's June 2, 2000, hospital admission record describes his injury as "right knee injury fell of f [sic] truck yesterday." The jury awarded damages to Gerald in the amount of $1,125,000, reduced to $562,600 to reflect its finding that Gerald bore fifty percent of the fault. The jury awarded Madeline no damages. The trial court entered judgment on the verdict on December 20, 2004. On January 19, 2005, Speedway filed a "Motion to Correct Error and for Relief from Judgment Under Indiana Trial Rules 59 and 60." Among other things, Speedway argued that the trial court erred in admitting into evidence "undisclosed and untested exhibits." Speedway also argued that testing of the jeans would reveal "newly discovered evidence which could not have been discovered and produced by Speedway at trial." Speedway identified several issues it claimed a test would resolve. These included whether the stain was diesel fuel, and if so, when that fuel was produced, and whether the fuel contained additives specific to Speedway diesel fuel. Speedway simultaneously filed a "Motion to Preserve Evidence and Conduct Destructive Testing" on the jeans. Over the plaintiffs' objection, the trial court granted Speedway's motion to test the jeans. When the tests were completed, Speedway renewed its request for relief under Trial Rule 60(B)(2) alleging newly discovered evidence, and the trial court conducted a hearing. A chemist's written report concluded that the stained areas did not contain diesel fuel, turpentine, or mineral spirits, but the jeans had been laundered with detergent. The chemist also testified that had diesel fuel, turpentine, or mineral spirits ever been present on the jeans, he would have expected to have seen evidence of them because he saw evidence of compounds of similar volatility. Examination of codes on the jeans' label revealed that the jeans had not yet been manufactured as of the date of Gerald's fall, June 1, 2000, and therefore could not have been worn on that date. The fabric was not in use until after November 2000, and this pair of jeans was manufactured in 2001 and was not available for sale before April or May 2001. Despite these results, both Gerald and Madeline maintained in affidavits that they were "nearly 100% certain that the jeans that were entered into evidence were the jeans Gerald was wearing at the time" of the fall. No testing was performed on the boots. The trial court considered the test results and denied Speedway's request. Specifically, the trial court found that

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[Speedway] did not establish intentional misrepresentation on the part of the Plaintiffs in offering the jeans and boots as exhibits at the trial of this matter. Additionally, it was within the discretion of the trial court to allow the jeans and boots to be admitted, and there was no showing of an abuse of discretion. Lastly, [Speedway's] remedy at trial was to request a continuance, and [Speedway] failed to do so. Speedway filed a timely appeal of the trial court's order denying its Trial Rule 60(B)(2) motion for a new trial on the basis of newly discovered evidence. Speedway also filed a motion in the trial court for the first time seeking relief under Trial Rule 60(B)(3) and alleging intentional misrepresentation by the plaintiffs. The trial court's ruling on the 60(B)(2) motion had already found no intentional misrepresentation, and the trial court denied Speedway's 60(B)(3) motion without explanation. Speedway then appealed the denial of its 60(B)(3) motion, and the Court of Appeals consolidated the two appeals. Gerald and Madeline cross-appealed, contending that the trial court improperly granted Speedway's motion to perform destructive testing. A majority of the Court of Appeals affirmed both of the trial court's orders denying Speedway relief. Speedway SuperAmerica, LLC v. Holmes, 866 N.E.2d 304, 306 (Ind. Ct. App. 2007). The majority concluded that Speedway was not entitled to relief under either Trial Rule 59 or 60(B)(2). First, the majority reasoned that "by choosing not to object to its introduction or request a continuance to test the jeans, Speedway made a conscious decision to take its chances with the jury without the evidence it now deems crucial for the administration of justice." Id. at 311. Second, the majority concluded that had Speedway acted diligently after trial, it reasonably could have discovered the new evidence within thirty days after judgment. Id. The majority also concluded that Speedway was not entitled to relief under Trial Rule 60(B)(3) because Speedway's 60(B)(3) motion was a "repackaged" attempt to relitigate its 60(B)(2) motion. Id. at 312

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