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From Products Liability Law Daily, May 1, 2013

Family Allegedly Sickened by Termiticide-Treated House Could Not Maintain Claims Against Chemical Manufacturer

By Georgia D. Koutouzos, J.D.

A family who moved into a house that had been treated with Dursban TC, a termiticide made by Dow Chemical Company, was unable to maintain product defect and failure to warn claims against the manufacturer under Indiana law, an appellate panel in that state concluded (Gresser v. Dow Chemical Company, Inc., April 30, 2013, Pyle, R.). In so ruling, the panel reversed the trial court’s denial of summary judgment for Dow on the defective product issue and affirmed the trial court’s grant of summary judgment for Dow on the failure to warn issue. And, because the manufacturer did not have to defend against the state-law product liability claims, summary judgment favoring Dow on the issue of federal preemption was deemed to have been improvidently granted.

Background. John and Janice Gresser purchased a house that, several months earlier, had been treated with Dursban TC, an Environmental Protection Agency-registered termiticide manufactured by Dow Chemical Company. Soon after having moved into the house (which still emanated a very strong odor at move-in time), the Gressers and their two daughters reportedly began experiencing flu-like symptoms, colds, excessive secretions, dizziness, fatigue, and other physical problems. In addition, the two girls allegedly developed irritability, behavior issues, and learning difficulties. The family moved out about one year later, ultimately filing claims under the Indiana Products Liability Act (IPLA) against Dow and negligence claims against the extermination firm that had applied the termiticide.

The parties’ contentions. The Gressers’ product liability claims against Dow were based upon the company’s alleged failure to: (1) use reasonable care to instruct about the use of Dursban TC; (2) warn about its dangers; and (3) properly design/test the product. They also sought punitive damages. Among Dow’s responses were: (1) a motion for summary judgment pertaining to the validity of the defective product and failure to warn claims; (2) a motion for summary judgment alleging that the failure to warn claim was preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and EPA regulations; and (3) a motion for summary judgment asserting that the punitive damages claim was unsubstantiated. The trial court granted Dow’s summary judgment motions pertaining to the validity of the failure to warn claim, the issue of federal preemption, and the punitive damages claim, but denied Dow’s motion for summary judgment on the defective product claim.

State-law product liability issues. The appeals court found that the Gressers’ defective design and failure to warn theories under the IPLA were ineffectual, noting that the two claims had to be considered together because they were inextricably linked. Pointing to Indiana law’s rebuttable presumption that the product that caused the physical harm is not defective if, before the sale by the manufacturer, the product complied with applicable codes, standards, regulations, or specifications established, adopted, promulgated, or approved by the United States, Indiana, or an agency of either, the court reasoned that Dow was entitled to the statutory presumption against defectiveness because Dursban TC had been registered with the EPA, pursuant to FIFRA and its implementing regulations. The undisputed evidence also established that Dow had always sold Dursban TC with a copy of the current EPA-approved label attached to the product’s container at the time of sale. Moreover, Dursban TC had never been sold to the general public; instead, it was sold to product distributors that sold it to applicator firms. According to the appellate panel, the combination of federal and state approval of the product, combined with the nature of the Gressers’ claim against the extermination firm (i.e., negligence), constituted undisputed evidence that Dursban TC was not defectively produced by Dow.

Because it was undisputed that Dow had complied with federal- and state-law labeling requirements, and the Gressers had presented no admissible evidence to rebut the presumption that Dursban TC was not defective, the manufacturer was entitled to judgment as a matter of law, the appellate panel held, ruling that the trial court erred in denying Dow’s motion for summary judgment on the Gressers’ defective design claim (and, by association, affirming the trial court’s grant of summary judgment for Dow on the failure to warn issue).

Federal preemption. The Gressers’ failure to establish their product liability claims against Dow under the IPLA also disposed of the federal preemption issue because Dow was not required to defend against those claims, the appeals court instructed. As such, the trial court’s grant of summary judgment for Dow on the preemption issue was improper, the appellate panel concluded.

The case number is 79A02-1111-CT-1014.

Attorneys: Roger L. Pardieck (The Pardieck Law Firm) and Michael J. Stapleton (Ball, Eggleston P.C. ) for Gresser; Lonnie D. Johnson (Clendening Johnson & Bohrer, P.C.) for Dow Chemical Co., Inc.

Companies: Dow Chemical Co., Inc., Dow Agrosciences LLC

MainStory: TopStory DesignManufacturingNews IndustrialCommercialEquipNews HouseholdProductsNews IndianaNews

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