Pants might drop $500K award

John O'Brien May 20, 2008, 2:45pm


INDIANAPOLIS (Legal Newsline) - For Speedway SuperAmerica's attorneys, the truth was in the pants all along. They just couldn't use it until now.

The Indiana Supreme Court on Thursday ordered a new trial in a slip-and-fall suit against the gas station chain after the Justices decided the pair of pants worn by a trucker who claimed he slipped on spilled diesel fuel should have been tested before entered into evidence.

Tests performed by a chemist determined that the jeans showed no traces of diesel fuel and were not available for sale until after Gerald Holmes' alleged fall. A jury awarded Holmes more than $500,000 in 2004, with the pants being entered as an exhibit during the trial.

"We do not suggest that a new trial is required whenever evidence appears at the eleventh or, as in this case, the thirteenth hour," Justice Theodore Boehm wrote. "Critical exhibits rarely surface within the weeks before trial, but when they do, parties considering offering them, and parties who have ongoing discovery obligations, are obligated to inform opposing counsel immediately.

"Even if the jeans were authentic, failure to communicate their existence shifted the practical burden of this late discovery to the innocent opposing party. If, as seems to be the case, the jeans were not what they appeared to be, the problem is compounded. The unusual circumstances surrounding this case lead us to conclude that equity requires a new trial."

Holmes was gassing his truck June 1, 2000, when he slipped in a Lake County Speedway's parking lot, injuring his leg and back, he said. His wife Madeline, who was traveling with him, backed his story.

He complained to the cashier inside, writing his information on a scrap piece of paper before he continued transporting his load of cheese to Michigan.

After noticing swelling, he went to a hospital emergency room for treatment. On Nov. 13, 2001, the Holmes filed their complaint against Speedway.

Three years later, the plaintiffs' counsel informed the defense that the Holmes had located the jeans and boots Gerald said he was wearing at the time of the fall. There was a somewhat dark stain on the seat of the pants, Holmes attorney Steven Parkman said.

Speedway's attorneys, during a bench conference while the jury was eating its lunch, objected to the introduction. Lake Circuit Judge Lorenzo Arredondo said the pants could be introduced but the stain could not be represented as diesel fuel.

Finding that Holmes was 50 percent at fault for the slip, the jury's award was reduced from $1,125,000 to $562,000. Even after the test results on the pants were returned, Arredando denied a new trial, as did the Court of Appeals.

"As a preliminary matter, the plaintiffs point out that despite Speedway's objection to the jeans at the lunch hour bench conference, when Parkman moved to admit the jeans after the jury returned, (Speedway attorney Todd) Conover stated, 'No objection, Judge,'" Boehm wrote.

"The plaintiffs argue that Speedway's failure to object to the formal admission of the jeans waived its claim for a new trial based on newly discovered evidence. We do not agree.

"Speedway's argument on appeal is not that the jeans should have been excluded, but that new evidence derived from testing of the jeans requires a new trial."

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