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FOR PUBLICATION
ATTORNEY FOR APPELLANT: MARK A. KIRCHER Milwaukee, Wisconsin ATTORNEYS FOR APPELLEE: NICHOLAS C. PAPPAS JULIA BLACKWELL GELINAS LUCY R. DOLLENS Indianapolis, Indiana

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

IN THE COURT OF APPEALS OF INDIANA
WESLEY H. FUEGER, Appellant-Plaintiff, vs. CNH AMERICA LLC, Appellee-Defendant, and CASE CORPORATION, CASE IH, CASE EQUIPMENT CORPORATION, CASE LLC, and DENNIS FUEGER, individual and d/b/a FUEGER FARMS, Appellee-Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Aug 21 2008, 9:37 am

CLERK

No. 74A04-0712-CV-683

APPEAL FROM THE SPENCER CIRCUIT COURT The Honorable Wayne A. Roell, Judge Cause No. 74C01-0507-CT-0246

AUGUST 21, 2008 OPINION ON PETITION FOR REHEARING BARTEAU, Senior Judge

Case Corporation, Case IH, Case Equipment Corporation, Case LLC, CNH America LLC (collectively "Case") bring this petition for rehearing, requesting that we reconsider our conclusion that the trial court erred by granting Case's motion to strike the expert affidavit of Walter Yeager ("Yeager"). We reaffirm our opinion on that issue, but grant Case's petition for rehearing solely for the purpose of more fully explaining our decision on the issue of summary judgment. In addition to holding that the trial court erred by granting Case's motion to strike the expert's affidavit, we held in our prior opinion in this matter, Fueger v. Case Corp., 886 N.E.2d 102 (Ind. Ct. App. 2008), that the trial court erred by granting summary judgment in favor of Case. Case previously argued that regardless of this court's

decision on the admissibility of Yeager's affidavit and testimony, that summary judgment in Case's favor was still appropriate. Case argued that Fueger had failed to establish in the designated materials, a question of fact that: 1) the skid loader was defective at the time of sale and had not been substantially altered; 2) there was another cost-effective design that could have prevented the injury; and 3) the skid loader was not state of the art. Fueger's claim is based upon the Indiana Product Liability Act ("the Act"). Ind. Code

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