Ind. Marion Cnty. Mass Tort Local Rule LR49-TR40 Rule 711

A. The Court will set no more than four trial settings per calendar year (January, April, July,

and October) for the asbestos cases pending on the Marion County Mass Tort Litigation Docket.

B. Once a particular trial setting has been established, no cases can be added or removed, nor

can the order of the cases be altered in any way without a written, verified showing of extraordinary

circumstances. Specifically, if a case is settled, dismissed or resolved in some other manner, or an

exigent case loses its exigent status, before the applicable trial date, the parties will not be allowed to

fill the newly vacant slot in the trial setting with another case.

C. This Court has determined that generally no more than eight cases shall be set for each

trial setting. Of these eight cases, no more than two exigent cases should be included per setting. Relief

from this Rule may be granted upon good cause shown.

D. Provisional Order Setting Trial. No less than 15 months prior to a trial date, Plaintiff’s

counsel shall post to the S-2 master docket a proposed Provisional Order Setting Trial (“POST”) using

the trial setting criteria in Rule 713. Parties shall have a seven-day period from the POST to file an

objection. Absent any objections, the Court may enter the POST.

1. The POST shall list:

a. First and second-choice settings, consisting of two exigent cases, if any, and if not,

two (2) slots tentatively reserved for exigent cases;

b. Third through eighth-choice settings, consisting of six non-exigent cases in First in,

First out (“FIFO”) order; and,

c. Two (2) additional non-exigent cases in FIFO order that shall be listed as alternates,

and which are only tentatively set for trial, but which will be the eighth setting, or

seventh and eighth- choice settings, in the event that there is only one or are no exigent

cases for that trial setting.

2. All non-exigent cases are only tentatively set for trial, and are subject to displacement by

cases that are rolled over from the previous trial setting for the same plaintiffs’ counsel.

3. This POST is intended to allow the parties to begin preparing the tentatively scheduled

cases for trial and alleviate the burden the parties bear in litigating entire cases in very short time

frames.

E. Exigent case. In the event that a case is granted exigent status pursuant to Rule 712 and

set for trial less than 18 months prior to its scheduled trial date, certain Case Management Deadlines

provided in these Rules are modified:

1. Plaintiff’s VIDS, Plaintiff’s Preliminary Fact Witness List shall be filed no later than 30

days after the Motion for Expedited Trial Setting is filed;

2. In an exigent case, a plaintiff shall respond to Defendants’ Master Set of Interrogatories

and Requests for Production no later than 30 days after the date that the Motion for Expedited Trial

Setting was filed, the filing of the VIDS, or service of the discovery, whichever is later.

3. This section modifies only those due dates specified herein. The deadlines established in

section (G), below, control the remaining deadlines, and all other provisions of Section (G) otherwise

control.

F. Stayed cases.

1. Definition and Designation of Stayed Cases. A “stayed case” is one that is currently not set

for trial or one that is not exigent under Rule 712. The stayed case designation shall be lifted when the

case is reached in FIFO order and set on a POST. Otherwise, a party may move the Court to lift the

stayed case designation, which the Court may order for good cause shown.

2. Effect of Stayed Status. No formal activity is required in a stayed case, other than the filing

of plaintiffs’ pleadings, appearances, and the gathering of information provided in Rule 708(D). Those

filings must be made regardless of stayed status. Other filings are permitted by any party, but the time

for response shall not begin until the case is set on a POST.

G. Case management orders. Except as otherwise provided in Section (E), above, all cases

shall be governed by the Case Management Order, provided herein:

STATE OF INDIANA ) MARION SUPERIOR COURT THIRTEEN

) MASS TORT LITIGATION

COUNTY OF MARION ) ASBESTOS DIVISION

IN RE: [month] [year] Trial Setting Master Docket, 95-000

[CASE NAMES] [CAUSE NO.’S]

CASE MANAGEMENT ORDER

Pursuant to Rule 711, the Court hereby enters the following Case Management Order to govern

cases included in the POST.

The Court recognizes that some of the cases may have been subject to prior Case Management

Orders. The deadlines established in this Order shall supersede all prior deadlines. Except where

specifically noted below, nothing in this order shall be read to require a party to refile or re-serve any

materials, except for Requests for Hearings on motions for summary judgment. Should any party

desire to re-file or re-serve amended or supplemental materials in accordance with the following

deadlines, leave is hereby granted to do so without the need for any further motion or order. The

specific dates set forth in this Order are based on the recommendations of the parties.

1. Verified Initial Disclosure Statements. Plaintiffs shall file their Verified Initial Disclosure

Statement (“VIDS”) within 90 days of the filing of the Complaint. In an exigent case, Plaintiffs shall

file their VIDS within 30 days of the filing of Plaintiffs’ Motion for Expedited Trial Setting.

2. Statement of special damages and settled parties.

A. In both exigent and non-exigent cases, Plaintiffs shall file their statement of special

damages and their list of settled Defendants 120 days before trial. In exigent cases, Plaintiffs shall file

any amendments to their statement of special damages and their list of settled Defendants no later than

120 days before trial.

B. Plaintiffs shall have a continuing obligation to update this list of settled Defendants and

shall provide a complete list to opposing counsel and the Court at the Final Pre-Trial Conference, at

which time counsel for the Defense may orally amend their Answer and the record to add any

Defendants recently dismissed from the case as nonparties.

3. Written discovery.

A. Written discovery shall be served and answered pursuant to Mass Tort Local Rules 707

and 708.

B. No party shall serve written discovery any later than 90 days before trial.

4. Witnesses.

A. No later than 90 days following the Court’s entry of the POST, Plaintiffs shall file their

Preliminary Fact Witness Lists identifying all witnesses from whom Plaintiffs may offer testimony at

trial or in connection with dispositive motions. To the extent Plaintiffs have previously filed a

Preliminary or Final Fact Witness List, Plaintiffs shall also by this date review them and supplement

and amend them to identify those witnesses Plaintiffs currently believe will actually testify. Plaintiffs’

counsel shall accept service of subpoenas on behalf of all Plaintiffs’ fact witnesses and/or produce

those witnesses for deposition, unless Plaintiffs’ counsel notifies Defendants otherwise. Except by

agreement of all parties or by order of the Court for good cause shown, Plaintiff must produce for

deposition by Defendants all of Plaintiff’s fact witnesses upon whom Plaintiff will rely for purposes

of summary judgment no later than 180 days before trial.

B. At least seven days prior to the scheduled deposition of a Plaintiff, coworker, or other

identification witness, Plaintiff shall serve Defendants with a notice containing the names of each

Plaintiff for whom the witness will be called to testify and against which Defendants the witness is

offered. These witnesses shall be produced for deposition by Plaintiff’s counsel without subpoena

upon reasonable notice by Defendants. Plaintiff will be prohibited from relying on or using at summary

judgment or trial any evidence from any witness who fails to appear for a deposition as noticed,

without good cause.

C. 60 days after Plaintiffs file their Preliminary Fact Witness Lists, Defendants shall file their

Preliminary Fact Witness Lists identifying all witnesses from whom Defendants may offer testimony

at trial or in connection with dispositive motions. To the extent Defendants have previously filed a

Preliminary or Final Fact Witness List, Defendants shall also by this date review them and supplement

and amend them to identify those witnesses Defendants currently believe will actually testify.

D. 150 days before trial, Plaintiffs shall file their Expert Witness Lists identifying those expert

witnesses from whom Plaintiffs may offer testimony at trial or in connection with any dispositive

motions. To the extent Plaintiffs have previously provided Expert Witness Lists, Plaintiffs shall also

by this date review them and supplement and amend them to identify those witnesses Plaintiffs

currently believe will actually testify. Plaintiffs shall also by this date serve copies of any existing

expert reports prepared in connection with these cases, if any, and reliance materials. 120 days before

trial, Plaintiffs shall provide available deposition dates and locations for all of their testifying experts.

Pursuant to T.R. 26(B)(4)(c), the parties seeking expert discovery shall pay the expert’s reasonable fee

for deposition testimony.

E. 120 days before trial, or 30 days after Plaintiffs have complied with the disclosure

requirements of Rule 711(G)(4)(D), whichever date is later, Defendants shall file their Expert Witness

Lists identifying those expert witnesses from whom Defendants may offer testimony at trial or in

connection with any dispositive motions. To the extent Defendants have previously provided Expert

Witness Lists, Defendants shall also by this date review them and supplement and amend them to

identify those witnesses Defendants currently believe will actually testify. Defendants shall also by

this date serve copies of any existing expert reports prepared in connection with these cases, if any,

and reliance materials. 90 days before trial, or 30 days after Plaintiffs have complied with the

requirements of Rule 711(G)(4)(D) to provide expert witness deposition dates and locations,

whichever date is later, Defendants shall provide available deposition dates and locations for all of

their testifying experts. Pursuant to T.R. 26(B)(4)(c), the parties seeking expert discovery shall pay

the expert’s reasonable fee for deposition testimony.

F. 90 days before trial, Plaintiffs shall file their Final Witness and Exhibit Lists.

G. Mediation. Absent leave of Court, mediation shall be completed no later than 60 days

before trial, unless the summary judgment motions of any remaining defendants have not been ruled

upon. In the event summary judgment motions have not been ruled upon more than 60 days prior to

trial, mandatory mediation for all parties will not be required.

H. 60 days before trial, or 30 days after Plaintiffs have filed their Final Witness and Exhibit

Lists pursuant to Rule 711(G)(4)(F), whichever date is later, Defendants shall file their Final Witness

and Exhibit Lists.

I. Thirty (30) days before trial, the parties shall have made available for deposition all

witnesses and all experts they have retained to testify. The parties shall cooperate in the scheduling of

depositions and shall complete all deposition discovery by that date, unless otherwise agreed by all

parties or by order of Court with good cause shown.

5. Motions.

A. Motions for summary judgment shall be filed 150 days before trial and comply with Rule

610. Responses, replies and surreplies shall be filed as set forth in T.R. 56 and in 610. Hearings on

motions for summary judgment will be scheduled for any party requesting a hearing, pursuant to T.R.

56 and Rule 610(F).

B. Hearings on motions for summary judgment will be set at least 90 days before trial, or on

such other dates as the Court may schedule for particular motions for any party tendering notice as

required by T.R. 56. The Court will provide counsel with a schedule setting forth the order of

arguments and time limits. The parties are encouraged to file written waivers of these oral arguments.

C. All responses and/or objections to motions, with the exception of motions for summary

judgment and motions to dismiss, served by one Defendant shall be deemed joined by all other

Defendants, without the filing of any joinders.

D. Parties must file a request for a hearing on any motion.

6. Trial preparation.

A. Not later than 28 days before the trial date, the parties shall file all motions in limine to

limit, exclude or challenge the qualifications or opinions of any expert witness under Indiana Rules of

Evidence 702; make each of the exhibits described in their Final Exhibit Lists available for inspection

and copying, and; Plaintiffs are to serve an updated statement of special damages and list of settled

defendants. Nothing in this Order is intended to limit any party’s right to copy or inspect trial exhibits

earlier through discovery requests.

B. Not later than 21 days prior to the trial date, each party shall file:

1. Any stipulations of fact;

2. A list of depositions intended to be used in the party’s case-in-chief that includes page

and line numbers that will be read;

3. Additional motions in limine. All motions in limine other than motions based on

Indiana Rules of Evidence 702 filed pursuant to Rule 711(G)(6)(A). All motions in limine

must divide the subjects into categories and include legal authority for each point. Motions in

limine which simply list subjects without proper briefing ad legal authority will not be

considered; and

4. All briefs in response to motions in limine based on Indiana Rules of Evidence 702,

filed pursuant to Rule 711(G)(6)(A).

5. A trial brief succinctly addressing the following matters: (a) contested issues of fact;

(b) contested issues of law and supporting authority; (c) a summary of motions in limine and

anticipated evidentiary disputes; (d) a list of witnesses that counsel intends to call at trial. The

trial brief shall be delivered to Court personnel and shall not be served on other parties using

File & ServeXpress. Each party shall present two copies of the trial brief to Court personnel

which the Clerk shall stamp as “RECEIVED.”

C. Not later than 14 days before trial, each party shall file:

1. Objections and counter-designations to depositions;

2. Objections or responses to motions in limine; and

3. Any proposed preliminary jury instructions to be read to the jury prior to opening

statements, and an agreed preliminary issue instruction. The issue instruction shall also be

provided to the Court via email in “word” processing format. If the parties cannot agree to a

preliminary issue instruction, the proposed instructions may be provided to the Court in hard

copy and via email along with a summary of any areas of disagreement.

D. Nothing in this Order is intended to prohibit the parties from raising matters related to

these cases during other conferences scheduled on the Court’s Mass Tort Litigation dockets. The

parties shall submit proposed agendas which comply with Rule 611 and list specifically those matters

which require attention. If no agendas are received or if all parties represent that the status conference

is necessary, the Court may vacate that conference from the Court’s calendar.

E. The Court shall conduct a final pre-trial conference to be scheduled. All trial counsel who

expect to participate in the trial shall attend the final pre-trial conference.

F. The Court will announce during the Defense Case-in-Chief the deadline for the Final

Proposed Jury Instructions, as well as the number of proposed non-pattern instructions permitted per

side. Counsel shall submit two copies of ALL proposed instructions (pattern and non-pattern), in three-

ring binders, with numerical dividers; providing the instruction with the appropriate

given/modified/refused/withdrawn provisions, followed by copies of the legal support for the

proposed instructions. Counsel shall also provide proposed pattern instructions separated from the

non-pattern instructions with the appropriate given/modified/refused/ withdrawn provisions. The disks

or email copies of the proposed instructions shall not have the citation that was provided on the hard

copy (to reduce the amount of editing required during compilation for the instructions). Because the

Court will require the Defendants to act in concert with regard to chargeable proposed instructions.

Updated January 1, 2021