ELI LILLY AND COMPANY et al v. ARCH INSURANCE COMPANY et al
Filing
1448
ORDER denying 1425 PLAINTIFFS' MOTION TO REVISE - SEE ORDER. Signed by Judge Tanya Walton Pratt on 03/25/2024. (AAS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ELI LILLY AND COMPANY,
ELI LILLY DO BRASIL LTDA,
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Plaintiffs,
v.
ARCH INSURANCE COMPANY,
ARCH SPECIALTY INSURANCE COMPANY,
COMMERCIAL UNION INSURANCE
COMPANY N/K/A ONEBEACON AMERICA
INSURANCE COMPANY,
ENDURANCE AMERICAN SPECIALTY
INSURANCE COMPANY,
LIBERTY INSURANCE UNDERWRITERS
INC.,
RSUI INDEMNITY COMPANY,
WESTCHESTER SURPLUS LINES
INSURANCE CO. Added on 1/27/2015 per
Amended Complaint,
XL INSURANCE AMERICA, INC.,
Defendants.
COMMERCIAL UNION INSURANCE
COMPANY N/K/A ONEBEACON AMERICA
INSURANCE COMPANY,
Counter Claimant,
v.
ELI LILLY AND COMPANY,
ELI LILLY DO BRASIL LTDA,
Counter Defendants.
No. 1:13-cv-01770-TWP-TAB
ORDER DENYING PLAINTIFFS' MOTION TO REVISE
This matter is before the Court on a Motion to Revise Interlocutory 2018 Order Granting
Summary Judgment for Arch on Reformation Claims, to Conform with 2022 Order Denying
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Summary Judgment for Upper Excess Carriers on Same Issue (the "Motion to Revise") filed by
Plaintiffs Eli Lilly & Company and Eli Lilly do Brasil, Ltda. ("Lilly Brasil") (together, "Lilly")
(Filing No. 1425). Lilly requests that the Court vacate and revise the Court's prior ruling granting
summary judgment in favor of Defendants Arch Insurance Company and Arch Specialty Insurance
Company (together, "Arch") on Lilly's reformation claims as being barred by the laches doctrine.
For the reasons stated below, the Court denies the Motion to Revise.
I.
BACKGROUND
On October 7, 2013, Eli Lilly & Company and its wholly owned subsidiary, Lilly Brasil,
initiated this insurance coverage action in state court, seeking declaratory relief and damages
(Filing No. 16-1). The lawsuit seeks a determination of rights arising from the insurance policies
sold to Eli Lilly & Company by the defendant insurance companies. Lilly requests insurance
coverage for certain underlying actions involving liability for environmental and other matters
brought against Lilly Brasil by the government and citizens of Brazil. Id. at 9.
First level excess insurance policies were issued by Arch (the "Arch Policies"), and upper
excess policies (the "Upper Excess Policies") were issued by various upper excess carriers,
including Defendants Endurance American Specialty Insurance Company, Liberty Insurance
Underwriters, Inc., RSUI Indemnity Company, Westchester Surplus Lines Insurance Company,
and XL Insurance America, Inc. (collectively, the "Upper Excess Carriers"). The Upper Excess
Policies sit above and "follow form" to the Arch Policies, meaning that the Upper Excess Policies
incorporate the same terms that appear in the Arch Policies unless expressly stated otherwise
(Filing No. 1425 at 2).
Following numerous motions to dismiss and for judgment on the pleadings, as well as
Lilly's voluntary notices of dismissal, some of the original insurance company defendants were
dismissed from the case, Lilly filed its Second Amended Complaint (Filing No. 289). Soon
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thereafter, on November 20, 2015, Arch moved for judgment on the pleadings ("MJOP") (Filing
No. 302). Arch argued, in part, that Lilly's reformation claims were barred by the doctrine of laches
and that, absent reformation, Lilly Brasil was not a named insured on the Arch Policies and lacked
standing. Following several deadline extensions, on July 15, 2016, Lilly filed its response to Arch's
MJOP and cross-moved for partial summary judgment (Filing No. 457). Lilly responded to Arch's
laches argument but did not cross-move for summary judgment on that issue. On July 20, 2016,
the Court converted Arch's MJOP to a motion for summary judgment (Filing No. 465). 1 Following
several more deadline extensions, on January 12, 2018, Arch filed its combined reply in support
of its MJOP and response to Lilly's cross-motion for summary judgment (Filing No. 905), and on
February 23, 2018, Lilly filed its reply in support of its cross-motion (Filing No. 982).
On June 18, 2018, Judge Robert L. Miller ruled on Lilly's and Arch's cross-motions (the
"2018 Order") (Filing No. 1118). The 2018 Order, in part, granted Arch's motion for summary
judgment as to Lilly's reformation claims "because they are barred by the laches doctrine." Id. at
26–27. The 2018 Order also granted Arch's motion as to Lilly Brasil's claims, finding that without
reformation and because Lilly Brasil was not a named insured on the insurance policies, Lilly
Brasil lacked standing to bring claims against Arch. Id. at 12–15.
On February 20, 2019, the case was reassigned to the undersigned Judge (Filing No. 1204).
On June 13, 2019, the Upper Excess Carriers filed a motion for summary judgment arguing, in
part, that Lilly's reformation claims against them were barred by laches (Filing No. 1229). In
response to the Upper Excess Carriers' laches argument, Lilly designated "extensive additional
evidence" that was not put before Judge Miller in 2018, including deposition testimony from eight
Despite having been converted to a motion for summary judgment, the Court will refer to Arch's motion as the
"MJOP" in this Order.
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witnesses and additional underwriting documents (Filing No. 1426 at 9–10). On September 30,
2022, the Court ruled on the Upper Excess Carriers' motion (the "2022 Order") (Filing No. 1410).
The 2022 Order denied the Upper Excess Carriers' motion for summary judgment as to laches. The
Court specifically stated that Lilly had designated "a raft of evidence . . . including evidence from
the insurance brokers, insurance underwriters, and insurance vice presidents" that "tends to negate
the [laches] elements of inexcusable delay and knowing acquiescence." Id. at 27–29. The 2022
Order further stated, "[b]ased on the record before the Court and viewing it in the light favorable
to the non-movant, the Court cannot conclude that the June 2018 Order and its ruling on laches
applies to bar the Plaintiffs' reformation claims against the Upper Excess Carriers." Id. at 29. Over
seven months later, on May 9, 2023, Lilly filed the instant Motion to Revise (Filing No. 1425).
II.
LEGAL STANDARD
Lilly's Motion to Revise is properly classified as a motion to reconsider under Federal Rule
of Civil Procedure 54(b) because no final judgment has been entered in this case. 2 See Fed. R. Civ.
P. 54(b) ("[A]ny order or other decision, however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties does not end the action as to any of
the claims or parties and may be revised at any time before the entry of a judgment adjudicating
all the claims and all the parties' rights and liabilities").
In ruling on Rule 54(b) motion to reconsider, the Court applies a similar standard as applied
to motions to alter or amend a judgment under Rule 59(e). Motions to reconsider filed pursuant to
Rule 54(b) or Rule 59(e) are for the purpose of correcting manifest errors of law or fact or to
Lilly asserts that its Motion to Revise is brought pursuant to both Rule 54(b) and the Court's inherent authority to
revise prior orders. This is a distinction without a difference, since courts apply the same limitations to both sources
of authority. See Boston v. U.S. Steel, No. 13-cv-00532, 2015 WL 4481990, at *1 (S.D. Ill. July 22, 2015) ("It is well
established that district courts have the authority to review interlocutory orders. Rule 54(b), inherent authority, and
common law inform the Court's ability to review non-final orders.").
2
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present newly discovered evidence not available at the time of briefing, and a motion to reconsider
an order under Rule 54(b) is judged by largely the same standard as a motion to alter or amend a
judgment under Rule 59(e). Katz-Crank v. Haskett, No. 13-cv-00159, 2014 WL 3507298, at *1–2
(S.D. Ind. July 14, 2014); Woods v. Resnick, 725 F. Supp. 2d 809, 827–28 (W.D. Wis. 2010).
Motions to reconsider "serve a limited function: to correct manifest errors of law or fact or
to present newly discovered evidence." State Farm Fire & Cas. Co. v. Nokes, 263 F.R.D. 518, 526
(N.D. Ind. 2009). The motion is to be used "where the Court has patently misunderstood a party,
or has made a decision outside the adversarial issues presented to the Court by the parties, or has
made an error not of reasoning but of apprehension." Bank of Waunakee v. Rochester Cheese Sales,
Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (citation omitted). A motion to reconsider under Rule
54(b) also may be appropriate where there has been "a controlling or significant change in the law
or facts since the submission of the issue to the Court." Id. (citation omitted).
The purpose of a motion for reconsideration is to ask the Court to reconsider matters
"properly encompassed in a decision on the merits." Osterneck v. Ernst & Whinney, 489 U.S. 169,
174 (1989). The motion "will be successful only where the movant clearly establishes: (1) that the
court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded
entry of judgment." Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013) (citation
and quotation marks omitted). A manifest error "is not demonstrated by the disappointment of the
losing party. It is the wholesale disregard, misapplication, or failure to recognize controlling
precedent." Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation and quotation
marks omitted).
Furthermore,
Motion practice is not an exercise in trial and error or maybe-maybe not where a
party can reserve arguments to present later if earlier ones fail. The Court is entitled
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to assume that, if [a party] had viable arguments to support its claim, it would have
presented them. The Court will not conduct [a party's] research and build [the
party's] analysis in order to find facts and law to support [the party's] own claims.
Brownstone Publ'g, LLC v. AT&T, Inc., No. 07-cv-1630, 2009 WL 799546, at *2 (S.D. Ind. Mar.
24, 2009). A motion to reconsider "is not an opportunity to relitigate motions or present arguments,
issues, or facts that could and should have been presented earlier." Id.
III.
DISCUSSION
Lilly asserts that the 2018 Order must be vacated and revise to resolve an inconsistency
between the 2018 and 2022 Orders and to correct manifest errors of fact or law in the 2018 Order. 3
Lilly argues that because the Upper Excess Policies "follow form" to the Arch Policies, any
evidence of Lilly's attempts to reform the Upper Excess Policies is also evidence of attempts to
reform the Arch Policies, and it would be illogical for the Court to apply the laches doctrine to
Lilly's reformation claims against Arch but not the Upper Excess Carriers. Lilly asserts that this
inconsistency must be resolved by applying the analysis in the Court's 2022 Order to the 2018
Order. Lilly contends that the more "developed" evidentiary record before the Court in 2022 shows
that Judge Miller's 2018 Order contains manifest errors of fact or law that warrant reconsideration
and revision (Filing No. 1434 at 3–4).
In response, Arch contends that Lilly failed to meet its burden as the non-movant in
response to Arch's MJOP, and the mere fact that Lilly met its burden in response to the Upper
Excess Carriers' motion does not mean that this Court can or should reconsider the 2018 Order.
Arch also argues that the 2018 and 2022 Orders are not inconsistent, that the "law of the case"
In its reply brief, Lilly makes clear that it is not moving to revise the 2018 Order on the basis of a change in law or
fact or newly discovered evidence (Filing No. 1434 at 5 ("Lilly is not seeking reconsideration based on new law or
facts that were unavailable when the 2018 Order was issued."). Instead, Lilly plainly states that it only seeks to correct
"a misapprehension that has produced a manifest error or law or fact." Id. at 3–4).
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doctrine precludes reconsideration, and that the evidence cited by Lilly in 2022 does not preclude
dismissal of the reformation claims against Arch under the laches doctrine. On reply, Lilly
contends that Arch "ignores that the identical issue was presented in both the 2018 and 2022
Orders—whether Lilly's efforts to correct the named insured problem in the Arch policies create a
fact issue on laches," and that the inconsistency in the Court's treatment of this "identical issue"
requires reconsideration of the 2018 Order (Filing No. 1434 at 2 (emphasis in original)).
The central premise of Lilly's Motion to Revise—that the 2018 and 2022 Orders are
inconsistent because they decided an "identical issue" differently—is flawed because it
mischaracterizes the pertinent issue. The precise issue decided in the 2018 and 2022 Orders was
whether summary judgment on laches was appropriate based on the evidentiary record before the
Court. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) ("The court has one task
and one task only: to decide, based on the evidence of record, whether there is any material dispute
of fact that requires trial."). In the 2018 Order, based on one evidentiary record, the Court found
that summary judgment was appropriate. In the 2022 Order, based on a different and more
developed evidentiary record, the Court found that it was not. The 2018 Order is not inconsistent
with the 2022 Order because the 2018 Order might have been decided differently if it were based
on the 2022 evidentiary record.
In addition to arguing that the 2018 and 2022 Orders are inherently inconsistent, which
they are not, Lilly argues that Judge Miller's 2018 Order should be reconsidered because it contains
a misapprehension resulting in manifest errors of fact or law. Specifically, Lilly asserts that Judge
Miller conducted a "less searching analysis" of the Second Amended Complaint and made only a
"passing reference to the much less comprehensive record" relating to Lilly's reformation efforts.
However, Lilly cites no basis for concluding that Judge Miller entirely disregarded, misapplied, or
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failed to recognize any specific facts, evidence, or controlling precedent. The mere absence of an
explicit reference to certain evidence is not proof that Judge Miller entirely failed to consider that
evidence. More importantly, Lilly fails to point to any evidence that, if considered, would have
changed the outcome of the 2018 Order. See Taylor v. Prince, No. 19-cv-01201, 2021 WL
11605603, at *1 (S.D. Ill. May 7, 2021). Lilly noticeably does not argue that, based solely on the
evidentiary record before Judge Miller in 2018, Arch was not entitled to summary judgment.
Instead, Lilly argues that based on the substantially more developed evidentiary record
before this Court in 2022, summary judgment should have been denied. However, regardless of
the sufficiency of the evidence Lilly designated in 2022, the fact remains that Lilly did not
designate that same evidence in 2018. Lilly readily acknowledges that in 2018, Judge Miller only
had a portion of the evidence that the Court considered in 2022. And despite Lilly's attempt to
downplay the distinction between those evidentiary records, Lilly itself describes the additional
evidence presented in 2022 as "extensive" and describes the 2018 evidentiary record as "much less
comprehensive" (Filing No. 1426 at 9–10). To be sure, this additional evidence was not irrelevant
to the Court's 2022 decision. In the 2022 Order, the Court explicitly noted that the "raft of
evidence" that kept Lilly's reformation claims afloat included deposition testimony that was not
before Judge Miller (Filing No. 1410 at 27). The Court also made abundantly clear in the 2022
Order that its laches decision was based on the then-current record before the Court. Id. at 27–29.
Lilly may not use its Motion to Revise as a vehicle to supplement the 2018 summary judgment
record with evidence it offered in 2022.
Arch also contends that reconsideration is inappropriate under the law of the case doctrine,
and the Court agrees (Filing No. 1431 at 8–9). As this Court explained in Rihm v. Ethicon, Inc.:
[t]he law of the case doctrine provides that "a ruling made in an earlier phase of a
litigation controls the later phases unless a good reason is shown to depart from it."
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Tice v. Am. Airlines, Inc., 373 F.3d 851, 853 (7th Cir. 2004); see also HK Sys., Inc.
v. Eaton Corp., 553 F.3d 1086, 1089 (7th Cir. 2009) ("The doctrine of law of the
case counsels against a judge's changing an earlier ruling that he made in the same
case . . . or that his predecessor as presiding judge had made.") (citations omitted).
"Generally speaking, a successor judge should not reconsider the decision of a
transferor judge at the same hierarchical level of the judiciary when a case is
transferred." Brengettcy v. Horton, 423 F.3d 674, 680 (7th Cir. 2005). The law of
the case doctrine "authorizes such reconsideration if there is a compelling reason,
such as a change in, or clarification of, law that makes clear that the earlier ruling
was erroneous." Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 572 (7th Cir.
2006).
No. 19-cv-04545, 2020 WL 5248604, at *1 (S.D. Ind. Sept. 3, 2020) (emphasis added)). Lilly
argues that this doctrine does not bar this Court from reconsidering Judge Miller's order, and that
the doctrine is inapplicable because the 2018 Order contains a manifest error of fact or law (Filing
No. 1434 at 10). Lilly is correct that the law of the case doctrine does not strictly preclude
reconsideration of another judge's order, but the Court finds that the doctrine is nevertheless
applicable here. Lilly has presented no good or compelling reason to reconsider Judge Miller's
2018 Order. For the reasons explained above, the 2018 and 2022 Orders are not inconsistent, and
the 2018 Order contains no manifest error of fact or law. The law of the case doctrine confirms
that this Court should not reconsider Judge Miller's 2018 Order.
Lilly asserts that other practical inconsistencies and "paradoxes" may arise if the 2018
Order is not revised. Lilly argues that a reformation trial against only the Upper Excess Carriers
would be complicated by the necessary admission of evidence regarding the Arch Policies, since
the Upper Excess Policies "follow form" to the Arch Policies (Filing No. 1426 at 11). However,
Lilly does not explain how the admission of evidence regarding Arch would complicate a
reformation trial against only the Upper Excess Carriers. To the contrary, Lilly appears to confirm
that the evidence presented at trial will be the same regardless of whether the reformation claims
against Arch are dismissed or not. Lilly also argues in its reply that if it prevails at trial against the
Upper Excess Carriers and "the 2018 Order is only then reversed on appeal, Lilly would then have
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to conduct a second full, largely duplicative, reformation trial against Arch" (Filing No. 1434 at 3
n.2). Therefore, "it makes more sense, and conserves judicial resources, to try the reformation
claims as to all parties only once." Id. The Court is not persuaded that the specter of an appellate
reversal and hypothetical second trial warrants reconsideration of Judge Miller's 2018 Order.
Lastly, Lilly argues that absent reconsideration of the 2018 Order, a reformation trial may
"lead to the paradoxical result that Arch's lead excess policies would be reformed for purposes of
Lilly's pursuit of coverage under the Upper Excess Carriers' follow form policies, but the same
Arch policies would not be reformed for purposes of Lilly's pursuit of coverage under the reformed
Arch policies themselves" (Filing No. 1426 at 11 (emphasis in original)). The Court does not see
how this situation is paradoxical, or how a jury would be unable to apply reformed terms as to only
the Upper Excess Policies. As Arch notes, this "circumstance is no different from one in which a
plaintiff sues multiple defendants, but the claims against one of those defendants is barred by the
statute of limitations" (Filing No. 1431 at 14). Even though the dismissal of Lilly's reformation
claims against Arch but not the Upper Excess Carriers might seem unfair to Lilly, that sense of
unfairness is not an adequate ground for reconsideration of the 2018 Order.
Lilly has not identified a manifest error of fact or law in the 2018 Order or shown any other
good and compelling reason to reconsider the 2018 Order under either Federal Rule of Civil
Procedure 54(b) or the Court's inherent authority to reconsider priori orders. Lilly's Motion to
Revise is therefore denied.
Because the Court is not reconsidering the 2018 Order, the Court declines to address the
parties' additional arguments as to whether the 2022 evidentiary record precludes summary
judgment on Lilly's reformation claims against Arch under the laches doctrine (Filing No. 1431 at
16–21; Filing No. 1434 at 11–18).
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IV.
CONCLUSION
For the foregoing reasons, Lilly's Motion to Revise (Filing No. 1425) is DENIED.
SO ORDERED.
Date: 3/25/2024
Distribution:
Thomas B. Bays
NORRIS CHOPLIN & SCHROEDER LLP
tbays@ncs-law.com
Eileen K. Bower
CLYDE & CO US LLP
Eileen.Bower@clydeco.us
Thomas A. Brusstar
HINKHOUSE WILLIAMS WALSH LLP
tbrusstar@hww-law.com
Dennis F. Cantrell
Stoll Keenon Ogden PLLC
dennis.cantrell@skofirm.com
Jeffrey D. Claflin
PLEWS SHADLEY RACHER & BRAUN LLP
cstrayer@psrb.com
Colin Edington Connor
PLEWS SHADLEY RACHER & BRAUN
cconnor@psrb.com
Meghan C. Dalton
Clyde & Co US LLP
meghan.dalton@clydeco.us
Andrew J. Detherage
BARNES & THORNBURG LLP (Indianapolis)
andy.detherage@btlaw.com
Wendy N. Enerson
COZEN O'CONNOR (Chicago)
wenerson@cozen.com
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Jeffrey B. Fecht
RILEY BENNETT EGLOFF LLP
jfecht@rbelaw.com
John Paul Fischer, Jr.
BARNES & THORNBURG LLP (Indianapolis)
john.fischer@btlaw.com
Ana M. Francisco
FOLEY & LARDNER LLP
afrancisco@foley.com
Michael Robert Giordano
LEWIS WAGNER, LLP
mgiordano@lewiswagner.com
Gregory M. Gotwald
PLEWS SHADLEY RACHER & BRAUN
ggotwald@psrb.com
Megan B. Gramke
UB Greensfelder LLP
mgramke@ubglaw.com
Scott A. Harkness
NORRIS CHOPLIN & SCHROEDER LLP
sharkness@ncs-law.com
Georgia Hatzis
ULMER & BERNE LLP
ghatzis@ulmer.com
Jennifer Snyder Heis
UB Greensfelder LLP
jheis@ubglaw.com
Katelyn H. Juerling
NORRIS CHOPLIN SCHROEDER
kjuerling@ncs-law.com
Joshua A. Klarfeld
ULMER & BERNE LLP
jklarfeld@ulmer.com
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Michael S. Knippen
TRAUB LIEBERMAN STRAUS & SHREWSBERRY LLP
mknippen@traublieberman.com
Kyle Andrew Lansberry
LEWIS WAGNER, LLP
klansberry@lewiswagner.com
Ryan Taylor Leagre
PLEWS SHADLEY RACHER & BRAUN
rleagre@psrb.com
Michael P. McNamee
Meagher & Geer, P.L.L.P.
mmcnamee@meagher.com
Meaghan Minalt
NICOLAIDES FINK THORPE MICHAELIDES SULLIVAN LLP
mminalt@nicolaidesllp.com
Erik S. Mroz
DREWRY SIMMONS VORNEHM, LLP
emroz@dsvlaw.com
Katherine C. O'Malley
Cozen O'Connor
komalley@cozen.com
George M. Plews
PLEWS SHADLEY RACHER & BRAUN
gplews@psrb.com
Peter J. Preston
HINKHOUSE WILLIAMS WALSH LLP
ppreston@hww-law.com
Meghan Eileen Ruesch
LEWIS WAGNER, LLP
mruesch@lewiswagner.com
Gina M. Saelinger
ULMER & BERNE LLP
gsaelinger@ulmer.com
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Frederic Xavier Shadley
ULMER & BERNE LLP
fshadley@ulmer.com
Charles E. Spevacek
Meagher & Geer, P.L.L.P.
cspevacek@meagher.com
Samuel R. Stalker
COZEN O'CONNOR (Chicago)
sstalker@cozen.com
Monica T. Sullivan
NICOLAIDES FINK THORPE MICHAELIDES SULLIVAN LLP
msullivan@nicolaidesllp.com
Jason M. Taylor
Traub Lieberman Straus & Shrewsberry LLP
jtaylor@traublieberman.com
David A. Temple
DREWRY SIMMONS VORNEHM, LLP (Carmel)
dtemple@DSVlaw.com
Joseph P. Thomas
ULMER & BERNE LLP
jthomas@ulmer.com
John Carl Trimble
LEWIS WAGNER LLP
jtrimble@lewiswagner.com
Bryan Vezey
COZEN O'CONNOR-Houston
bvezey@cozen.com
Mark F. Wolfe
TRAUB LIEBERMAN STRAUS & SHREWSBERRY LLP
mwolfe@traublieberman.com
Joseph Ziemianski
COZEN O'CONNOR (Houston)
jziemianski@cozen.com
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