Gresser v. Dow Chem. Co.
| Decision Date | 22 July 2013 |
| Docket Number | No. 79A02–1111–CT–1014.,79A02–1111–CT–1014. |
| Citation | 989 N.E.2d 339 |
| Parties | John GRESSER and Janice Gresser, Individually and as parents and natural guardians of Elizabeth Gresser and Rebekah Gresser, Appellants/Plaintiffs, v. The DOW CHEMICAL COMPANY, INC. DowElanco n/k/a Dow Agrosciences LLC, and Reliable Exterminators, Inc., Appellees/Defendants. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Roger L. Pardieck, Karen M. Davis, Sarah Miller Hyatt, The Pardieck Law Firm, Seymour, IN, Michael J. Stapleton, Elizabeth B. Searle, Ball, Eggleston P.C., Lafayette, IN, Attorneys for Appellant.
Lonnie D. Johnson, Patricia S. Bernens, Clendening Johnson & Bohrer, P.C., Bloomington, IN; Joseph G. Eaton, Dean T. Barnhard, Paul L. Jefferson, Barnes & Thornburg, LLP, Indianapolis, IN, Attorneys for Appellee.
John and Janice Gresser, individually, and as parents and natural guardians of Elizabeth and Rebekah Gresser (collectively, “the Gressers”), filed a product liability action against The Dow Chemical Company, Inc., and DowElanco n/k/a Dow Agrosciences LLC (collectively, “Dow”) and a negligence action against Reliable Exterminators, Inc. (“Reliable”).
Dow responded to the Gressers' suit by filing several motions for summary judgment and motions to strike. Reliable also filed or joined in the summary judgment motions. The Gressers appeal the trial court's grant of some of these summary judgment motions, while Dow and Reliable cross-appeal the trial court's denial of other summary judgment motions. In addition, Reliable cross appeals the trial court's denial of its motion to exclude and/or strike depositions, affidavits, and other evidence proposed by the Gressers' expert witnesses. The issues delineated below are dispositive.
We affirm in part, reverse in part, and remand for further proceedings. 1
1. Whether summary judgment for Dow is warranted under the Indiana Product Liability Act (“IPLA”).
2. Whether the trial court erred in denying Reliable's motion to exclude or strike the evidence proposed by the Gressers' causation experts.
3. Whether the trial court erred in denying Reliable's motion for summary judgment on the Gressers' negligence claim.
4. Whether the trial court erred in denying Reliable's summary judgment motion on the issue of punitive damages.
5. Whether the trial court erred in determining that this case is preempted by federal law.
On January 31, 2000, Reliable's owner, Robert Hanstra (“Hanstra”), performed a pre-treatment inspection of a house owned by James Galloway and marketed by REMAX Realty (“REMAX”). Hanstra found evidence of what he believed to be termite activity, and he recommended that the house be treated for termites. Reliable subsequently entered into a contract with REMAX that required Reliable to apply a termiticide to the house. The contract was in connection with the sale of the house to New Chauncey Housing (“New Chauncey”).
On February 11, 2000, Reliable employee Dave Neal treated the house by applying a termiticide, Dow's Dursban TC, to get rid of wood destroying insects. At all times, Dursban TC was registered with the Environmental Protection Agency (“EPA”) according to the requirements of the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”).
Thirteen months after Reliable's application of Dursban TC, the Gressers purchased the house, even though they detected a very strong odor in the house. On May 10, 2001, two months after the purchase, the Gressers moved into the house, which still emanated a very strong odor.
After moving into the house, the Gressers reportedly experienced continual health problems, including unremitting flu-like symptoms, colds, excessive secretions, dizziness, fatigue, and other physical problems. The Gressers' daughters reportedly developed irritability, behavior problems, and learning difficulties. In June of 2002, the Gressers moved out of the house because they feared that something in the house was causing their various illnesses.
On March 17, 2004, the Gressers filed product liability claims against Dow and negligence claims against Reliable. Their product liability claims are based on Dow's alleged failure to (1) use reasonable care to instruct about the use of the product; (2) warn about its dangers; and (3) properly test and design the product. The Gressers' claims against Reliable are based on their belief that Reliable negligently (1) chose to apply a termiticide where none was necessary; (2) selected Dursban TC instead of a safer product; (3) misapplied Dursban TC; and/or (4) failed to provide a warning to future occupants of the house.
Dow filed separate motions for summary judgment pertaining to the validity of the Gressers' failure to warn claims and various other issues pursuant to the Gressers' claims under IPLA. Dow also filed a motion for summary judgment alleging that the Gressers' failure to warn claims were preempted by federal law, specifically FIFRA and EPA regulations. Dow further filed a motion for summary judgment alleging that the Gressers' claim for punitive damages was unsubstantiated. In addition, Dow filed various motions to strike designated evidence, including expert witness affidavits.
The trial court granted Dow's summary judgment motion pertaining to the validity of the Gressers' failure to warn claims under IPLA. The trial court also granted Dow's motion for summary judgment on the issue of federal preemption. The trial court further granted Dow's summary judgment motion pertaining to the Gressers' claim for punitive damages. The trial court denied all other Dow motions without substantive comment, including a motion by both Dow and Reliable to exclude two of the Gressers' expert witnesses.
Reliable filed a motion for summary judgment and joined with Dow on other motions. The trial court denied Reliable's motion for summary judgment and other motions. However, the trial court granted summary judgment in favor of Reliable on the federal preemption issue.2
Additional facts will be disclosed below as necessary.
Summary judgment is appropriate if there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. City of Terre Haute v. Pairsh, 883 N.E.2d 1203, 1206 (Ind.Ct.App.2008), trans. denied. A genuine issue of material fact exists “ ‘where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue.’ ” Haub v. Eldridge, 981 N.E.2d 96, 101 (Ind.Ct.App.2012) (quoting Scott v. Bodor, 571 N.E.2d 313, 318 (Ind.Ct.App.1991)). When reviewing entry of summary judgment, we stand in the shoes of the trial court. Koppin v. Strode, 761 N.E.2d 455, 460 (Ind.Ct.App.2002), trans. denied.
The moving party bears the burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Boston v. GYN, Ltd., 785 N.E.2d 1187, 1190 (Ind.Ct.App.2003), trans. denied. We review only the designated evidentiary material in the record, construing that evidence liberally in favor of the nonmoving party so as not to deny that party its day in court. Myers v. Irving Materials, 780 N.E.2d 1226, 1228 (Ind.Ct.App.2003). However, once the movant has carried its initial burden of going forward under Indiana Trial Rule 56(C), the nonmovant must come forward with sufficient evidence demonstrating the existence of genuine factual issues that should be resolved at trial. Clary v. Dibble, 903 N.E.2d 1032, 1038 (Ind.Ct.App.2009), trans. denied. If the nonmovant fails to meet its burden, and the law is with the movant, summary judgment should be granted. Id.
Our standard of review is not altered by the fact that the parties made cross-motions for summary judgment. Sapp v. Flagstar Bank, FSB, 956 N.E.2d 660, 663 (Ind.Ct.App.2011). Instead, we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.
As noted above, the trial court granted Dow's summary judgment motion regarding the validity of the Gresser failure to warn claims under IPLA. However, the trial court denied Dow's summary judgment motion based upon the Gressers' failure to satisfy IPLA requirements for proving that a product was defective. The Gressers appeal the grant of the former motion, and Dow cross appeals the denial of the latter motion. The motions are inextricably linked, and we base our decision upon the evidence designated by both parties and upon the dictates of federal and state law.
IPLA governs all actions that are (1) brought by a user or consumer; (2) against a manufacturer or seller; and (3) for physical harm caused by the product, regardless of the substantive legal theory or theories upon which the action is brought. Ind.Code § 34–20–1–1. Liability under IPLA is imposed “upon sellers of a product in a defective condition that is unreasonably dangerous to any user or consumer.” Warriner v. DC Marshall Jeep, 962 N.E.2d 1263, 1267 (Ind.Ct.App.2012), trans. denied. A product is defective if, at the time it is conveyed by the seller to another party, it is in a condition that is not contemplated by reasonable persons among those expected users or consumers of the product and that will be unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways of handling of consumption. Ind.Code § 34–20–4–1. The requirement that the product be in a defective condition focuses on the product itself while the requirement that the product be unreasonably dangerous focuses on the reasonable expectations of the consumer. Baker v. Heye–America, 799 N.E.2d 1135, 1140 (Ind.Ct.App.2003), trans. denied. A product may be dangerous in the ordinary sense but not “unreasonably dangerous” for product liability purposes under IPLA. Id.
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