from the Hamilton Superior Court The Honorable Steven R.
Nation, Special Judge Trial Court Cause No. 29D01-1004-CT-445
ATTORNEYS FOR APPELLANT Kevin C. Schiferl Darren A. Craig
ATTORNEYS FOR APPELLEE John F. Townsend, III Indianapolis,
Indiana W. Scott Montross Indianapolis, Indiana
a previous appeal in these proceedings, this court reversed a
jury verdict in favor of Terex-Telelect, Inc.
(Terex) based on an erroneous jury instruction.
See Wade v. Terex-Telelect, Inc., 966 N.E.2d 186
(Ind.Ct.App. 2012), trans. denied. (Terex
I). Specifically, the majority held that evidence of
Terex's compliance with American National Standards
Institute Standard A92.2 (ANSI A92.2) in the design of the bucket
at issue was irrelevant to the defect alleged by Wade, and
thus, did not support the giving of a jury instruction
regarding a rebuttable presumption that the bucket at issue
was not defective. The case was remanded to the trial court.
advance of the third trial, Wade filed a motion in limine
seeking to exclude evidence of Terex's compliance with
ANSI A92.2 and the design specifications found in ANSI A92.2.
The trial court granted Wade's motion, finding that this
court's decision in Terex I established the law
of the case with regard to relevancy and therefore required
such exclusion. Terex moved to certify the matter for
interlocutory appeal, which request the trial court granted.
This court accepted jurisdiction over this interlocutory
appeal on December 18, 2015. There are two issues presented
for our review:
1. Under the law of the case doctrine, does this court's
prior opinion in Terex I require exclusion of
evidence pertaining to ANSI A92.2 and Terex's compliance
therewith in a subsequent trial?
2. Is evidence relating to ANSI A92.2 and Terex's
compliance therewith relevant?
& Procedural History
underlying facts, taken from this court's opinion
following the second trial, follow:
Terex is the manufacturer of buckets and booms used by
utilities and construction companies to access elevated work
areas. The buckets and booms allow linemen to work on utility
lines and equipment that could not be reached from standing
on the ground. A bucket is attached by a retractable boom to
a truck, and the bucket is cradled on top of the truck for
transport. When cradled, the bucket is approximately twelve
feet above the ground.
In 1994, Richmond Power & Light ("Richmond
Power") purchased a double-man bucket truck ("Truck
32"). After reviewing brochures regarding the products
available, Richmond Power prepared detailed specifications
for the type of truck desired. A bid was submitted by a
distributor that complied with the specifications and
included an aerial lift and bucket manufactured by Terex.
This distributor was ultimately awarded the contract.
Richmond Power specified that the bucket in Truck 32 contain
a polypropylene dielectric/insulating liner. The use of a
dielectric liner is very important for utility companies
purchasing bucket trucks because of the danger of a lineman
being electrocuted by power lines. To maintain dielectric
integrity, holes or openings in the liner are avoided because
they would expose the occupant to electrical contact.
Richmond Power's specifications included an exterior
step, and the bucket produced to meet these specifications
had a molded exterior step with an interior recess that
extended into the hollowed out portion of the exterior step.
Richmond Power's specifications did not include an
interior step for the bucket or the liner. The interior
recess for the exterior step was completely covered by the
dielectric liner requested by Richmond Power. A molded
interior step or a portable interior step were available
options, but Richmond Power did not specify that it desired
On August 25, 1997, Wade was employed by Richmond Power as an
apprentice lineman. As part of his employment, Wade installed
various types of equipment for Richmond Power, which
sometimes involved the use of a bucket truck. When working in
the bucket, linemen were attached to the bucket through the
use of a lanyard and harness. The reason for wearing the
lanyard is to ensure that the lineman does not fall to the
ground if he were to lose his balance and fall. On the date
at issue, Wade was working on the installation of a
transformer approximately thirty feet off the ground. He was
working from inside a double-man bucket attached to Truck 32.
After finishing the installation, the bucket was lowered to
the cradling position on top of the truck, with the top of
the bucket approximately twelve feet above the ground. When
the bucket was cradled, Wade replaced his tools in a tool
apron that hung inside the bucket, removed his safety
goggles, detached his lanyard, and prepared to exit the
bucket. While attempting to exit the bucket, Wade missed the
exterior step completely and fell twelve feet to the ground.
As a result of this fall, Wade was rendered quadriplegic.
On July, 9, 1999, Wade filed a complaint against Terex and
Dueco, Inc. ("Dueco"), a distributor of Terex
products, alleging that Terex was negligent under the Indiana
Product Liability Act in the design of the bucket, which
injured Wade. Wade contended that the interior recess for the
exterior step was in fact an interior step and that the lack
of a molded interior step on the insulating dielectric liner
caused this interior step to be covered up, which led to his
fall. Wade alleged that, because Terex had sold liners with
molded interior steps to other ...