SURVEY OF RECENT DEVELOPMENTS IN
INDIANA PRODUCT LIABILITY LAW

JOSEPH R. ALBERTS*

ROBERT B. THORNBURG**

HILARY G. BUTTRICK***

INTRODUCTION

This Survey reviews the significant product liability cases decided during the
survey period.1 It offers select commentary and context and organizes its
treatment of the relevant cases into a basic structure that mirrors the Indiana
Product Liability Act (“IPLA”).2 This Survey does not attempt to address all
product liability cases decided during the survey period in detail. Rather, it
focuses on cases involving important substantive product liability concepts
arising under Indiana law and offers appropriate background information about
the IPLA.

The 2017 cases addressed many issues that courts have tackled in the recent
past, such as warning and design defects, the “merger” of negligence and tort-
based warranty claims into IPLA claims, the use of expert witnesses in product
liability cases, and federal preemption. The 2017 decisions also focused on a
couple issues that have not been as widely reviewed in recent years, including the
specific pleading requirements necessary to sustain a product liability action and
what constitutes “physical harm,” a specific and necessary element of a product
liability claim.

I. THE SCOPE OF THE IPLA

The IPLA governs actions brought by “users” or “consumers” against
“manufacturers” or “sellers” when a product causes “physical harm.”3 The IPLA
defines each of those quoted terms, and case law has helped to clarify those
definitions. When read together, Indiana Code sections 34-20-1-1 and 34-20-2-1
establish five unmistakable threshold requirements for IPLA liability:  (1) a

* Senior Litigation Counsel, DowDupont, Inc. Agriculture Division, Indianapolis, Indiana.

B.A., cum laude, 1991, Hanover College; J.D., magna cum laude, 1994 Indiana University Robert

H. McKinney School of Law. The authors thank Dean Barnhard for his research and editing

assistance.

** Member, Frost Brown Todd LLC, Indianapolis. B.S., um laude Ball State University;

J.D., 1996, Indiana University Maurer School of Law.

*** Assistant Professor of Business Law, Butler University College of Business, Indianapolis.

B.A., summa cum laude, 1999, DePauw University; J.D., summa cum laude, 2002, Indiana

University Robert H. McKinney School of Law.

1. The survey period is October 1, 2016 to September 30, 2017.

2. IND. CODE §§ 34-20-1-1 to -9-1 (2017). This Survey follows the lead of the Indiana

General Assembly and employs the term “product liability” (not “products liability”) when

referring to actions governed by the IPLA.

3. Id.

http://doi.org/10.18060/4806.1216



1150 INDIANA LAW REVIEW [Vol. 51:1149

claimant who is a user or consumer and is also “in the class of persons that the
seller should reasonably foresee as being subject to the harm caused by the
defective condition;”4 (2) a defendant that is a manufacturer or a “seller . . .
engaged in the business of selling [a] product;”5 (3) “physical harm caused by a
product;”6 (4) a “product in a defective condition unreasonably dangerous to [a]
user or consumer” or to his or her property;7 and (5) a product that “reach[ed] the
user or consumer without substantial alteration in [its] condition . . . .”8 Indiana
Code section 34-20-1-1 further establishes the IPLA governs every claim that
satisfies those threshold requirements, “regardless of the substantive legal theory
or theories upon which the action is brought.”9

A. User/Consumer and Manufacturer/Seller

Over the last decade, there have been a number of cases addressing the scope
and reach of the IPLA. Several of those cases addressed who may file suit in
Indiana as product liability plaintiffs because they are “users”10 or “consumers.”11

By the same token, there is now a fairly robust body of case law in Indiana
identifying people and entities that are “manufacturers”12 or “sellers”13 and,

4. Id. § 34-20-2-1(1).

5. Id. § 34-20-2-1(2). For example, corner lemonade stand operators and garage sale

sponsors are excluded from IPLA liability, according to the latter section.

6. Id. § 34-20-1-1(3).

7. Id. § 34-20-2-1.

8. Id. § 34-20-2-1(3).

9. Id. § 34-20-1-1.

10. Id. § 34-6-2-147.

11. Id. § 34-20-1-1. A literal interpretation of the IPLA demonstrates even if a claimant

qualifies as a statutorily-defined “user” or “consumer,” before proceeding with a claim under the

IPLA, he or she also must satisfy another statutorily-defined threshold. Id. § 34-20-2-1(1). That

additional threshold is found in Indiana Code section 34-20-2-1(1), which requires the “user” or

“consumer” also be “in the class of persons that the seller should reasonably foresee as being

subject to the harm caused by the defective condition.” Id. Thus, the plain language of the statute

assumes a person or entity must already qualify as a “user” or a “consumer” before a separate

“reasonable foreseeability” analysis is undertaken. In that regard, it does not appear the IPLA

provides a remedy to a claimant whom a seller might reasonably foresee as being subject to the

harm caused by a product’s defective condition if that claimant does not fall within the IPLA’s

definition of “user” or “consumer.” Two of the leading recent cases addressing “users” and

“consumers” include Vaughn v. Daniels Co., 841 N.E.2d 1133 (Ind. 2006), and Butler v. City of

Peru, 733 N.E.2d 912 (Ind. 2000).

12. IND. CODE § 34-6-2-77. For purposes of the IPLA, a manufacturer is “a person or an

entity who designs, assembles, fabricates, produces, constructs, or otherwise prepares a product or

a component part of a product before the sale of the product to a user or consumer.” Id. § 34-6-2-

77(a). A few of the more recent influential cases that evaluated whether an entity qualifies as a

“manufacturer” under the IPLA include Mesman v. Crane Pro Services, 512 F.3d 352 (7th Cir.

2008), Pentony v. Valparaiso Department of Parks & Recreation, 866 F. Supp. 2d 1002 (N.D. Ind.



2018] PRODUCT LIABILITY 1151

therefore, proper defendants in Indiana product liability cases. Several of those
cases address the specific circumstances under which retail sellers and distributors
may be deemed to be manufacturers under the IPLA, including Parks v. Freud
America, Inc.,14 Shelter Insurance Cos. v. Big Lots Stores, Inc.,15 and Heritage
Operating LP v. Mauck.16

B. Physical Harm Caused by a Product

For purposes of the IPLA, “‘[p]hysical harm’ . . . means bodily injury, death,
loss of services, and rights arising from any such injuries, as well as sudden,
major damage to property.”17 It “does not include gradually evolving damage to
property or economic losses from such damage.”18 A “product” is “any item or
good that is personalty at the time it is conveyed by the seller to another party,”
but not a “transaction that, by its nature, involves wholly or predominantly the
sale of a service rather than a product.”1 9 A number of notable Indiana decisions
over the past twenty years or so have helped to refine the concept of “physical
harm caused by a product.”20 The 2017 survey period produced three more. 

2012), and Warriner v. DC Marshall Jeep, 962 N.E.2d 1263 (Ind. Ct. App. 2012).

13. IND. CODE § 34-6-2-136. The IPLA defines a seller as “a person engaged in the business

of selling or leasing a product for resale, use, or consumption.” Id. Indiana Code section 34-20-2-1

adds three additional and clarifying requirements as it relates to “sellers.” First, an IPLA defendant

must have sold, leased, or otherwise placed an allegedly defective product in the stream of

commerce. Id. Second, the seller must be in the business of selling the product. Id. And, third, the

seller expects the product to reach and, in fact, it did reach the user or consumer without substantial

alteration. Id.; see also Williams v. REP Corp., 302 F.3d 660, 662-64 (7th Cir. 2002). Sellers can

also be held liable as manufacturers in two ways. First, a seller may be held liable as a manufacturer

if the seller fits within the definition of “manufacturer” found in Indiana Code section 34-6-2-77(a).

Second, a seller may be held liable as a manufacturer “[i]f a court is unable to hold jurisdiction over

a particular manufacturer” and if the seller is the “manufacturer’s principal distributor or seller.”

Kennedy v. Guess, Inc., 806 N.E.2d 776, 781 (Ind. 2004) (quoting IND. CODE § 34-20-2-4 (1999)).

When the theory of liability is based upon “strict liability in tort,” Indiana Code section 34-20-2-3

makes clear a “seller” that cannot otherwise be deemed a “manufacturer” is not liable and is not

a proper IPLA defendant.

14. No. 2:14-cv-00036-LJM-WGH, 2016 U.S. Dist. LEXIS 7525, at *1-2 (S.D. Ind. Jan. 22,

2016).

15. No. 3:12-cv-433 JVB, 2014 WL 4494382 (N.D. Ind. Sept. 10, 2014).

16. 37 N.E.3d 514 (Ind. Ct. App. 2015), trans. denied, 43 N.E.3d 1278 (Ind. 2016).

17. IND. CODE § 34-6-2-105(a) (2017). 

18. Id. § 36-6-2-105(b).  

19. Id. § 34-6-2-114(a)-(b).

20. See, e.g., Bell v. Par Pharm. Cos., No. 1:11-cv-01454-TWP-MJD, 2013 WL 2244345

(S.D. Ind. May 21, 2013); Barker v. CareFusion 303, Inc., No. 1:11-cv-00938-TWP-DKL, 2012

WL 5997494 (S.D. Ind. Nov. 30, 2012); Hathaway v. Cintas Corp. Servs., Inc., 903 F. Supp. 2d 669

(N.D. Ind. 2012); Pentony v. Valparaiso Dep’t of Parks & Recreation, 866 F. Supp. 2d 1002 (N.D.

Ind. 2012); GuideOne Ins. Co. v. U.S. Water Sys., Inc., 950 N.E.2d 1236, 1244 (Ind. Ct. App.



1152 INDIANA LAW REVIEW [Vol. 51:1149

In Watts Water Technologies, Inc. v. State Farm Fire & Casualty Co.,21 the
court addressed the issue of property damage as the “physical harm” necessary
to form the basis of a product liability claim. In this subrogation case, an insurer
sued the manufacturer of a water heater component, alleging that the component
failed and caused water damage to the insured’s property.22 The insurer and the
manufacturer were parties to an arbitration agreement, which expressly excluded
product liability actions from arbitration.23 The question before the court was
whether the dispute was subject to arbitration.24 The manufacturer argued, in part,
that the insurer’s allegations were insufficient to meet the “physical harm”
requirement of the IPLA because the complaint did not allege “sudden, major
damage” to property; thus, the case did not fall under the arbitration clause’s
product liability exclusion.25 The court began by noting that “physical harm”
covers “sudden, major damage to property,” and that “physical harm” does not
encompass “gradually evolving damage to property.”26 The complaint alleged that
the failure occurred “on or about” November 30, 2014.2 7 The manufacturer
argued that this language did not suggest “sudden, major damage;” rather, it
suggested “gradually evolving damage.”28 The court concluded that the complaint
sufficiently alleged water damage to the insured’s property; thus it was possible
that the claim fell within the arbitration agreement’s product liability exclusion.29

The court affirmed the trial court’s order denying the manufacturer’s motion to
compel arbitration.30 

In Constructora Mi Casita v. Nibco, Inc., a condominium developer sued the
manufacturer of various plumbing fixtures used throughout its condominium
project.31 The developer alleged that the fixtures failed, which caused the
condominiums to sustain water damage, which in turn led to mold growth.32 The
developer brought an IPLA claim to recover for the water damage to the
condominium units, as well as mold remediation.33 In its motion to dismiss, the
manufacturer argued that these claims were barred by the economic loss doctrine,
which prohibits the recovery in tort for damage to the product itself and other

2011); Fleetwood Enters., Inc. v. Progressive N. Ins. Co., 749 N.E.2d 492, 493-94 (Ind. 2001);

Miceli v. Ansell, Inc., 23 F. Supp. 2d 929, 932 (N.D. Ind. 1998).

21. 66 N.E.3d 983, 991-92 (Ind. Ct. App. 2016).

22. Id. at 986.

23. Id. 

24. Id. at 990.

25. Id. at 991-92.

26. Id.

27. Id. at 992. 

28. Id.

29. Id. at 993.

30. Id.

31. No. 3:16-cv-565-PPS-MGG, 2017 WL 3438182, at *1 (N.D. Ind. Aug. 9, 2017).

32. Id. at *6.

33. Id.



2018] PRODUCT LIABILITY 1153

economic losses, but allows recovery in tort for damage to other property.34 The
court ruled that the developer could recover for damage to the condominium units
and common areas, as these were “other property,” but the developer could not
recover in tort for the cost of the defective plumbing fixtures or “other purely
economic loss, including the costs associated with relocating residents and lost
profits.”35 The manufacturer also argued that the developer could not recover the
cost of mold remediation because mold is not “sudden, major” property damage.36

Rather, mold occurs gradually and therefore is not the type of property damage
that is covered by the IPLA.3 7 The court noted that additional facts were needed
to determine whether the mold could be considered “sudden” property damage
under the IPLA.38 The court concluded that for the purposes of surviving a motion
to dismiss, the developer had sufficiently pleaded the mold remediation claim
under the IPLA.39 
 The third of the three cases, Direct Enterprises, Inc. v. Sensient Colors LLC40

involved a dispute between a seed treatment distributor and a seller of seed
colorants.41 The distributor purchased the seed colorants, which it then
incorporated into its seed treatment blends.42 The seed treatment distributor then
sold the treatment blends to its customers, who reported that the containers
holding the treatment blends developed a “sludge” at the bottom.43 The seed
treatment distributor alleged that the colorant caused the sludge, and it sued the
colorant seller under various theories, including the IPLA.44 The defendant seller
moved to dismiss the IPLA claim under the economic loss doctrine.4 5 In essence,
the seller argued that the colorant was part of the plaintiff’s seed treatment blend;
therefore, the plaintiff was seeking to recover for damage to the “product itself”
instead of “other property.”46 The court relied on Gunkel v. Renovations, Inc.47 in
noting that the economic loss doctrine precludes recovery in tort for damages
sustained to the product itself, and only damage to “other property” is recoverable
under the IPLA.48 Thus, the question was whether the seed treatment blend, which
contained the colorant, was “other property,” or whether it was “the product

34. Id. (citing Gunkel v. Renovations, Inc., 822 N.E.2d 150, 153 (Ind. 2005)).

35. Id. at *6. Note however, that the court found that the developer could potentially recover

these economic losses under a breach of warranty theory. Id. 

36. Id.

37. Id.

38. Id.

39. Id.

40. No. 1:15-cv-01333-JMS-TAB, 2017 WL 3314793, at *1 (S.D. Ind. Aug. 3, 2017).

41. Id.

42. Id. at *2-4.

43. Id. at *3.

44. Id.

45. Id. at *9.

46. Id.

47. 822 N.E.2d 150 (Ind. 2005).

48. Direct Enters., Inc., 2017 WL 3314793, at *9.



1154 INDIANA LAW REVIEW [Vol. 51:1149

itself.”49 The court found guidance on this point in Gunkel: “‘property acquired
separately [is] “other property” for purposes of the economic loss doctrine even
if the defective product is to be incorporated into a completed product for use or
resale.’”50 The court concluded that the colorants were purchased separately from
the other components of the finished seed blends.51 To the extent the colorants
damaged the other components and the finished seed blend, the damage was to
“other property.”52 Accordingly, the economic loss doctrine did not bar the IPLA
claim.53 The defendant also argued that the IPLA claim failed because the
plaintiff did not plead “sudden, major” property damage; instead, the plaintiff
claimed that “the treatments ‘began to show a thick sludge,’” which suggested
that the damage arose gradually.54 The court rejected this argument because the
court did not read the complaint “as alleging that the sludge developed slowly,
but instead as alleging that the Plaintiffs and their customers discovered the
sludge in spring of 2013, when they began to treat seeds for planting.”55 

C. Defective and Unreasonably Dangerous

IPLA liability only extends to products that are in “defective condition,”5 6

which exists if the product, at the time it is conveyed by the seller to another
party, is: “(1) not contemplated by reasonable persons among those considered
expected users or consumers of the product; and (2) that will be unreasonably
dangerous to the expected user or consumer when used in reasonably expectable
ways of handling or consumption.”57 Both are threshold proof requirements.58

Indiana claimants may prove a product is in a “defective condition” by
asserting one or any combination of the following three theories: (1) the product
has a defect in its design (“design defect”); (2) the product lacks adequate or
appropriate warnings (“warning defect”); or (3) the product has a defect that is
the result of a problem in the manufacturing process (“manufacturing defect”).5 9

49. Id.

50. Id. (quoting Gunkel, 822 N.E.2d at 156).

51. Id. at *10.

52. Id.

53. Id.

54. Id.

55. Id. (Emphasis original).

56. IND. CODE § 34-20-2-1 (2017). 

57. Id. § 34-20-4-1.

58. See Baker v. Heye-Am., 799 N.E.2d 1135, 1140 (Ind. Ct. App. 2003), trans. denied, 812

N.E.2d 799 (Ind. 2004) (“[U]nder the IPLA, the plaintiff must prove that the product was in a

defective condition that rendered it unreasonably dangerous.”).

59. See Westchester Fire Ins. Co. v. Am. Wood Fibers, Inc., No. 2:03-CV-178-TS, 2006 WL

752584, at *5 (N.D. Ind. Mar. 31, 2006); First Nat’l Bank & Trust Corp. v. Am. Eurocopter Corp.

(Inlow II), 378 F.3d 682, 689 (7th Cir. 2004); Baker, 799 N.E.2d at 1140. 

Although claimants are free to assert any of the three theories, or a combination, for

proving that a product is in a ‘defective condition,’ the IPLA provides explicit statutory



2018] PRODUCT LIABILITY 1155

An unreasonably dangerous product under the IPLA is one that “exposes the user
or consumer to a risk of physical harm . . . beyond that contemplated by the
ordinary consumer who purchases [it] with the ordinary knowledge about the
product’s characteristics common to the community of consumers.”60 If a product
injures, in a fashion that is objectively known to the community of product
consumers, it is not unreasonably dangerous as a matter of law.61 Courts in
Indiana have been fairly active in recent years when it comes to dealing with
concepts of unreasonable danger and causation in Indiana product liability
actions.62

The IPLA, specifically Indiana Code section 34-20-2-2, imposes a negligence
standard in all product liability claims relying upon a design or warning theory
to prove a product is in a defective condition:  

[I]n an action based on an alleged design defect in the product or based
on an alleged failure to provide adequate warnings or instructions
regarding the use of the product, the party making the claim must
establish that the manufacturer or seller failed to exercise reasonable care
under the circumstances in designing the product or in providing the
warnings or instructions.63

Accordingly, the term “strict” liability is no longer applicable in design and
warning cases to the extent the term “strict” connotes the imposition of liability

guidelines for identifying when products are not defective as a matter of law. Indiana

Code section 34-20-4-3 provides that ‘[a] product is not defective under [the IPLA] if

it is safe for reasonably expectable handling and consumption. If an injury results from

handling, preparation for use, or consumption that is not reasonably expectable, the

seller is not liable under [the IPLA].’ IND. CODE § 34-20-4-3 (2013). In addition, ‘[a]

product is not defective under [the IPLA] if the product is incapable of being made safe

for its reasonably expectable use, when manufactured, sold, handled, and packaged

properly.’ Id. § 34-20-4-4.

Joseph R. Alberts et al., Survey of Recent Developments in Indiana Product Liability Law, 47 Ind.

L. Rev. 1129, 1133-34 n.45 (2014). 

60. IND. CODE § 34-6-2-146; see also Baker, 799 N.E.2d at 1140. 

61. Baker, 799 N.E.2d at 1140; see also Moss v. Crosman Corp., 136 F.3d 1169, 1174-75

(7th Cir. 1998). 

62. See Joseph R. Alberts et al., Survey of Recent Developments in Indiana Product Liability

Law, 49 Ind. L. Rev. 1125, 1130 (2016); see also Piltch v. Ford Motor Co., 778 F.3d 628 (7th Cir.

2015), Stuhlmacher v. Home Depot U.S.A., Inc., No. 2:10-CV-00467-JTM-APR, 2013 WL

3201572 (N.D. Ind. June 21, 2013); Bell v. Par Pharm. Cos., No. 1:11-cv-01454-TWP-MJD, 2013

WL 2244345, at *1 (S.D. Ind. May 21, 2013); Beasley v. Thompson/Center Arms Co., No. 2:11-cv-

3-WTL-WGH, 2013 WL 968234 (S.D. Ind. Mar. 12, 2013); Hathaway v. Cintas Corp. Servs., Inc.,

903 F. Supp. 2d 669 (N.D. Ind. 2012); Roberts v. Menard, Inc., No. 4:09-CV-59-PRC, 2011 WL

1576896 (N.D. Ind. Apr. 25, 2011); Price v. Kuchaes, 950 N.E.2d 1218, 1232-33 (Ind. Ct. App.

2011).

63. IND. CODE § 34-20-2-2. 



1156 INDIANA LAW REVIEW [Vol. 51:1149

without regard to fault or the exercise of reasonable care.64 The IPLA
contemplates the traditional type of “strict” liability (without fault or proof of
negligence) only for so-called “manufacturing” defects—those that arise “in the
manufacture and preparation of the product.”65 For manufacturing defects,
liability can be established even if the seller has “exercised all reasonable care.”66

The IPLA has, for nearly twenty years, made clear “strict” liability applies
only in cases involving alleged manufacturing defects.67 Several decisions have
recognized that point, including a 2017 survey period case, Aregood v. Givaudan
Flavors Corp.68 Other decisions have been slow to recognize that concept.69

Indeed, at least one recent decision recognized that there has been some confusion
about the proper use of the term “strict” liability in the context of the current
IPLA.70 Another recent decision illustrates how a court’s understanding and

64. IND. CODE § 34-6-2-2(1).

65. Id.; see also Mesman v. Crane Pro Servs., 409 F.3d 846, 849 (7th Cir. 2008), reh’g and

petition for reh’g en banc denied, (July 26, 2005), appeal after new trial, 512 F.3d 352 (7th Cir.

2008); Conley v. Lift-All Co., No. 1:03-CV-1200-DFH-TAB, 2005 WL 1799505, at *6 (S.D. Ind.

July 25, 2005); Bourne v. Marty Gilman, Inc., No. 1:03–CV–1375–DFH–VSS, 2005 WL 1703201,

at *3 (S.D. Ind. July 20, 2005); First Nat’l Bank & Tr. Corp. v. Am. Eurocopter Corp. (Inlow II),

378 F.3d 682, 689 n.4 (7th Cir. 2004).

66. IND. CODE § 34-6-2-2(1). “Strict” liability for defects “in manufacturing and preparation”

is also subject to the additional requirement that the “user or consumer has not bought the product

from or entered into any contractual relation with the seller.” Id. § 34-6-2-2(2).

67. See generally Warriner v. DC Marshall Jeep, 962 N.E.2d 1263 (Ind. Ct. App. 2012); see

also Vaughn v. Daniels Co., 841 N.E.2d 1133, 1138-39 (Ind. 2006); Whitted v. Gen. Motors Corp.,

58 F.3d 1200, 1206 (7th Cir. 1995). 

68. No. 1:14-cv-00274-LJM-TAB, 2017 WL 2378258, at *9 (S.D. Ind. June 1, 2016).

69. See generally Warriner, 962 N.E.2d at 1263; see also Vaughn, 841 N.E.2d at 1138-39;

Whitted, 58 F.3d at 1206.

70. Jones v. Horseshoe Casino, No. 2:15-cv-00014-PPS-PRC, 2015 WL 3407872, at *2 (N.D.

Ind. May 27, 2015). See Joseph R. Alberts et al., Survey of Recent Developments in Indiana

Product Liability Law, 50 Ind. L. Rev. 1305, 1310-12 (2017); Alberts et al., supra note 62, at 1132-

33. A misleading short title in the Burns Indiana Statutes Annotated compendium may be

contributing to some of the confusion in this area. IND. CODE § 34-20-2-2. In the 1998 Replacement

Volume, the Burns editors inserted a short title for Indiana Code section 34-20-2-2, entitled, “Strict

liability – Design defect.” Id. That short title unfortunately makes it appear to some readers as

though strict liability applies either to the entire section (and thereby all three theories for proving

defectiveness) or, at the very least, to design defect claims. See, e.g., Whitted, 58 F.3d at 1206;

Vaughn, 841 N.E.2d at 1138-39; Warriner, 962 N.E.2d 1263. Neither is accurate because, as noted

above, a close reading of the statute reveals “strict” liability (liability without fault or proof of

negligence) applies only to cases involving manufacturing defect theories and not to cases alleging

either design or warning theories. IND. CODE § 34-6-2-2(1). Incidentally, the West editors did not

use the same short title in the West’s Annotated Indiana Code, choosing instead to use a more

accurate short title styled, “Exercise of reasonable care; privity.” IND. CODE § 34-20-2-2. The

Indiana General Assembly originally codified in 1995 the language now found in Indiana Code

section 34-20-2-2. That language was subsequently re-numbered in 1998 as part of a reorganization



2018] PRODUCT LIABILITY 1157

application of the “strict” liability concept can profoundly affect the outcome of
a case.71

And just like a claimant advancing any other type of negligence theory, a
claimant advancing a product liability design or warning defect theory must meet
the traditional negligence elements: duty, breach, injury, and causation.72 As it
relates to causation, such a claimant must demonstrate with sufficient admissible
evidence that the product’s defective and unreasonably dangerous condition was
both the cause-in-fact and the legal or “proximate” cause of the damages
alleged.73 

D. Decisions Involving Specific Defect Theories

1. Design Defect Theory.—State and federal courts in Indiana have issued
several recent decisions addressing design defect theories and the proof required

of Title 34. Neither the 1995 enactment nor the 1998 recodification, as published by the Indiana

General Assembly, included any section short title for the particular section involved here.

71. In Heritage Operating LP v. Mauck, 37 N.E.3d 514 (Ind. Ct. App. 2015), trans. denied,

43 N.E.3d 1278 (Ind. 2016), the court initially resolved a manufacturer/seller issue as a matter of

law, but in doing so, it presumed there was an operative IPLA-based “strict liability” claim. Id. at

522-25. A close reading of the decision reveals the plaintiffs’ only real IPLA-based defect theory

alleged an inadequate warning. Id. at 520. The decision does not indicate plaintiffs were pursuing

any design defect claims, nor did the plaintiffs appear to have asserted a “manufacturing defect”

claim by contending the natural gas product itself suffered from some kind of problem or glitch in

the manufacturing process. Id. at 519. The plaintiffs appeared to have recognized natural gas is

what it is, and they did not appear to have taken any issue with the process of refining or producing

it. Id. Accordingly, there was no “strict” liability theory Indiana Code section 34-20-2-2(1) would

allow in the Mauck case. To the extent “strict” liability is a term associated with the concept of

liability without regard to fault or proof of negligence, it is not a doctrine the IPLA recognizes as

applicable to inadequate warning theories. Id. at 519. It is, therefore, peculiar that the Mauck court

took such great pains to reject the Indiana Supreme Court’s venerable Webb v. Jarvis three-part

duty analysis applicable to negligence cases in favor of a separate duty analysis arising out of an

older line of non-IPLA cases that treated natural gas as “a dangerous instrumentality.” Id. at 521

(quoting Palmer & Sons Paving, Inc. v. N. Ind. Pub. Serv. Co., 758 N.E.2d 550, 554 (Ind. Ct. App.

2001)). Perhaps the fact that the Mauck court was under the impression an IPLA-based warnings

defect negligence case is functionally the same as a traditional “strict” liability case might help

explain why it rejected the Webb test in favor of a special rule when natural gas is the “product”

at issue. Id. at 522-25.

72. See, e.g., Kovach v. Caligor Midwest, 913 N.E.2d 193, 197-99 (Ind. 2009).

73. See Costanza v. Vulcan Ladder Co., No. 1:13-CV-260-TLS, 2016 WL 7048799, at *9

(N.D. Ind. Dec. 5, 2016) (causation and its necessary evidentiary support is a required element in

sustaining a product liability claim); see also Bowersock v. Davol, Inc., 236 F. Supp. 3d 1074, 1089

(S.D. Ind. 2017) (causation and its necessary evidentiary support is a required element in sustaining

a product liability claim); Lyons v. Leatt Corp., No. 4:15-CV-17-PRC, 2017 WL 4117775 (N.D.

Ind. Sep. 14, 2017) (product liability cases often require expert opinion testimony to establish a

legal causal connection). See also infra Part III.B.



1158 INDIANA LAW REVIEW [Vol. 51:1149

to sustain that theory.74 The 2017 survey period contributed another such
decision, Aregood v. Givaudan Flavors Corp.75 In that case, several popcorn
factory workers alleged that their exposure to butter flavors containing diacetyl
caused them respiratory problems.76 Among other things, the plaintiffs claimed
that the design of the butter flavoring was defective because it was more
dangerous than an ordinary consumer would expect when it was used as
intended.77 Relying upon much of the same evidence used to successfully
establish a learned intermediary defense78 to the plaintiffs’ defective warning
claims, the flavoring supplier argued that the plaintiffs’ employer’s knowledge
of an association between diacetyl in butter flavors and lung disease coupled with
its complete control over workplace safety, broke the causal chain between the
plaintiffs’ alleged injuries and the defective design of the butter flavoring.79 The
court did not agree.80 It reasoned the doctrine of intervening or superseding
causation had not been adequately addressed by the parties.81 The doctrine
focuses upon whether the harm resulting from the intervening act was reasonably
foreseeable by the manufacturer.82 If the harm is the natural, probable or
foreseeable result of the original negligent act, the original negligent actor can
still be liable even though “independent agencies” intervene.83 If, however, the
intervening act is not foreseeable, then the original negligent actor is not liable for
the harm that results.84 The court could not conclude, based on the evidence
before it, that the worker’s employer’s safety program was an unforeseeable
intervening cause.85

74.  See Alberts et al., supra note 70, at 1312-14; Alberts et al., supra note 62, at 1137-38.

See also Terex-Telelect, Inc. v. Wade, 59 N.E.3d 289 (Ind. Ct. App. 2016); Piltch v. Ford Motor

Co., 778 F.3d 628 (7th Cir. 2015); Simmons v. Philips Elecs. N.A. Corp., No. 2:12-CV-39-TLS,

2015 WL 1418772 (N.D. Ind. Mar. 27, 2015); Weigle v. SPX Corp., 729 F.3d 724 (7th Cir. 2013);

Lapsley v. Xtek, Inc., 689 F.3d 802 (7th Cir. 2012); Hathaway v. Cintas Corp. Servs., Inc., 903 F.

Supp. 2d 669 (N.D. Ind. 2012) (discussing design defects and products liability); Green v. Ford

Motor Co., 942 N.E.2d 791 (Ind. 2011); TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201

(Ind. 2010); Mesman v. Crane Pro Servs., Inc., 409 F.3d 846 (7th Cir. 2005), reh’g and petition for

reh’g en banc denied, (July 26, 2005), appeal after new trial, 512 F.3d 352 (7th Cir. 2008).

75. No. 1:14-cv-274-LJM-TAB, 2017 WL 2378258 (S.D. Ind. June 1, 2016).

76. Id. at *4.

77. Id. at *9.

78. See discussion infra Part D.2.

79.  Aregood, 2017 WL 2378258,  at *12.

80. Id.

81. Id.

82. Id. (quoting Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 520 (Ind. 1994)).

83. Id. at *12.

84. Id.

85. Id. The plaintiffs’ victory was relatively short-lived, however. After additional discovery,

summary judgment was later granted against the plaintiffs’ design defect claim because the

plaintiffs had not established that the use of a diacetyl-free butter flavoring was a feasible, cost-

effective alternative design. See No. 1:14-cv-00274-SEB-TAB, 2017 WL 4699275 (S.D. Ind. Oct.



2018] PRODUCT LIABILITY 1159

2. Warning Defect Theory.—The IPLA contains a specific statutory provision
covering the warning defect theory:

A product is defective . . . if the seller fails to: (1) properly package or
label the product to give reasonable warnings of danger about the
product; or (2) give reasonably complete instructions on proper use of the
product; when the seller, by exercising reasonable diligence, could have
made such warnings or instructions available to the user or consumer.86

For a cause of action to attach in failure to warn cases, the “unreasonably
dangerous” inquiry is similar to the requirement that the danger or alleged defect
be latent or hidden.87 

There are several relatively recent decisions that have helped define the
contours of the IPLA’s warnings defect theory and what proof is required to
sustain such a theory.88 The 2017 survey period produced three more notable
cases in this area, Costanza v. Vulcan Ladder Co.,89 Aregood v. Givuadan Flavors
Corp.,90 and Fisk v. Medtronic, Inc.91 

In the first case, Costanza v. Vulcan Ladder Co., the plaintiff was injured
when he claimed that a multi-positional, extendable articulating ladder collapsed,
causing him to suffer serious leg injuries.92 The court addressed two issues of note
for this survey: (1) the admissibility of plaintiff’s expert witness’s testimony,
which is discussed in section III.B.; and (2) whether the warnings and instructions
that accompanied the ladder were adequate, which is discussed here.93

Constanza purchased the ladder at a local retail store.94 The ladder could be
used in a position as an “A-frame” stepladder or fully-extended as a straight
extension ladder.95 The ladder was hinged and had two lock positions on its

18, 2017).

86. IND. CODE § 34-20-4-2 (2017).

87. See First Nat’l Bank & Trust Corp. v. Am. Eurocopter Corp. (Inlow II), 378 F.3d 682,

690 n.5 (7th Cir. 2004).

88. See generally Simmons v. Philips Elecs. N.A. Corp., No. 2:12-CV-39-TLS, 2015 WL

1418772 (N.D. Ind. Mar. 27, 2015); Shelter Ins. Cos. v. Big Lots Stores, Inc., No. 3:12-CV-433-

JVB, 2014 WL 4494382 (N.D. Ind. Sept. 10, 2014); Weigle v. SPX Corp., 729 F.3d 724 (7th Cir.

2013); Hartman v. Ebsco Indus., Inc., No. 3:10-CV-528-TLS, 2013 WL 5460296 (N.D. Ind. Sept.

30, 2013); Stuhlmacher v. Home Depot U.S.A., Inc., No. 2:10-CV-00467-JTM-APR, 2013 WL

3201572 (N.D. Ind. June 21, 2013); Tague v. Wright Med. Tech., Inc., No. 4:12-CV-13-TLS, 2012

WL 1655760 (N.D. Ind. May 10, 2012); Hathaway v. Cintas Corp. Servs., Inc., 903 F. Supp. 2d 669

(N.D. Ind. 2012). See also Alberts et al., supra note 62, at 1134-37.

89. No. 1:13-CV-260-TLS, 2016 WL 7048799 (N.D. Ind. Dec. 5, 2016).

90. Aregood, 2017 WL 2378258.

91. No. 3:17-CV-032-JD, 2017 WL 4247983 (N.D. Ind. Sept. 25, 2017).

92. Costanza, 2016 WL 7048799 at *1.

93. Id. at *7. 

94. Id. at *1.

95. Id.



1160 INDIANA LAW REVIEW [Vol. 51:1149

hinges.96 The first locked the ladder into an “A-frame” configuration as a
traditional stepladder.97 A user could then depress a knob on the hinge and the
ladder would rotate into a straight, extension ladder position.98 Costanza
positioned the ladder into the straight position and used it to attempt to climb to
his roof.99 As he stepped onto the roof, he fell.100 He was later discovered tangled
in the ladder and the ladder was in an “A-frame” position.101 Plaintiff contended
that even though he positioned the ladder in a straight position, the hinge locks
did not engage and the instructions on the ladder made him believe that if he
heard one click, instead of two, the hinge lock was engaged.102  

The ladder manufacturer moved for summary judgment, contending that the
plaintiff’s expert’s opinions were inadmissible and arguing that the plaintiff’s
description of the accident simply couldn’t have happened in the manner
alleged.103 Plaintiff’s expert contended that the instructions were inadequate
because the manufacturer failed to provide visual warnings that the hinges on the
ladder were not locked and failed to provide instructions explaining how to verify
the hinge locks were engaged.104 Interestingly, during the hearing the plaintiff was
able to demonstrate how the ladder could be placed into a position where the
hinge did not lock and the ladder could collapse.105 The court opined that
historically questions of the adequacy of warnings and instructions were
questions for the trier of fact and inappropriate for summary judgment.1 0 6 The
court held that a question of fact existed because the plaintiff and the
manufacturer offered competing testimony about whether the ladder could be
climbed in a straight position without the hinge lock engaging and both experts
disagreed about the adequacy and clarity of the instructions and warnings on the
ladder itself and available at the point of its sale.107 The court opined the weight
to be afforded to the conflicting opinions of each expert was to be decided by the
jury.108

Next, as discussed in the preceding section, in Aregood v. Givaudan Flavors
Corp., several microwave popcorn factory workers alleged that their exposure to
butter flavors containing diacetyl caused them respiratory problems.109 For their
failure to warn claims, the plaintiffs alleged that the manufacturer purposely

96. Id.

97. Id.

98. Id. at *1-2

99. Id. at *2.

100. Id.

101. Id.

102. Id.

103. Id. at *3-5, 8.

104. Id. at *9.

105. Id.

106. Id. (citing Jarrell v. Monsanto Co., 528 N.E.2d 1158, 1162 (Ind. Ct. App. 1988)).

107. Id. at *10-11.

108. Id. at *10 (citing Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 765 (7th Cir. 2013)).

109. No. 1:14-cv-00274-LJM-TAB, 2017 WL 2378258 (S.D. Ind. June 1, 2016).



2018] PRODUCT LIABILITY 1161

failed to warn them about the dangers of butter flavors causing permanent lung
damage by withholding information from them that people working with diacetyl
should use full face respirators.110 The court first noted Indiana’s non-delegable
general rule that a manufacturer has a duty to warn users of all latent dangers
inherent in the use of a product before turning to a very thorough and thoughtful
analysis of the sophisticated intermediary doctrine, which creates an exception to
the general rule absolving a manufacturer of liability.111 The sophisticated
intermediary doctrine applies if three criteria are met.112 First, the product must
be sold to an intermediary with knowledge or sophistication equal to that of the
manufacturer.113 Second, the manufacturer must give adequate warnings about the
dangers inherent in the product.114Third, the manufacturer can reasonable rely on
the intermediary to adequately warn the ultimate user.115

The court granted the butter flavoring supplier’s motion for summary
judgment against the plaintiffs’ defective warning claims because their employer,
who had purchased the butter flavor for use in manufacturing microwave
popcorn, was a sophisticated intermediary.116 Significantly, during the relevant
timeframe neither the manufacturer of the flavoring, the trade association it was
a part of, nor the professionals it or the trade association hired had discovered a
link between respiratory problems and butter flavor.117 Hence, the manufacturer
did not have knowledge of a latent danger or known safety information that had
been withheld.11 8 Second, the plaintiffs’ employer was as sophisticated and had
as much knowledge, if not more, about the risks posed by diacetyl in butter flavor
as the manufacturer did and had used diacetyl in several plants for many years.119

In addition, the plaintiffs’ employer was a large sophisticated company with its
own occupational health department and had become aware of a purported link
between diacetyl exposure and lung disease at another plant.120 The plaintiffs’
employer was also part of an ad hoc industry work group developing best
practices for microwave popcorn worker safety.121 Finally, the plaintiffs’
employer had taken affirmative steps to protect its workers from diacetyl
exposure consistent with industry standards as well as state and local agencies.122

Hence, summary judgment was appropriately granted against the plaintiffs’

110. Costanza, 2016 WL 7048799 at *10.

111. Id.

112. Id.

113. Id. (citation omitted).

114. Id. (citation omitted).

115. Id. (citation omitted).

116. Id.

117. Id.

118. Id.

119. Id. at *11.

120. Id.

121. Id.

122. Id.



1162 INDIANA LAW REVIEW [Vol. 51:1149

failure to warn claims.123

In the third case in this group, Fisk v. Medtronic, Inc., the plaintiff sued the
manufacturer of an allegedly defective pain pump catheter. 124 The complaint
asserted, among other things, a failure to warn claim.125 Specifically, the plaintiff
alleged that the manufacturer failed to report problems with the device to the
FDA—had that information been provided timely, her doctors would not have
implanted the device.126 The manufacturer moved to dismiss the claim arguing (1)
that it was barred by the “learned intermediary” doctrine because the
manufacturer had a duty to warn only the plaintiff’s doctors, and not the plaintiff
directly; (2) that Indiana does not require manufacturers to disclose product
failure information to third parties, like the FDA; (3) that the claim was
preempted; and (4) that the complaint inadequately pleaded causation.127 The
court rejected all of these arguments.128 First, the court found that the learned
intermediary doctrine was inapplicable—the complaint did not claim that the
manufacturer should have warned the plaintiff directly; rather, it alleged that the
manufacturer failed to disclose the information to the FDA.1 2 9 Second, the court
noted that Indiana law does, under some circumstances, require manufacturers to
disclose information to third parties.130 Third, the court found the claim was not
preempted because it was predicated on a failure to comply with FDA reporting
guidelines and did not purport to impose additional reporting obligations on the
manufacturer.131 Finally, the court found that causation was adequately pleaded.132

Although the plaintiff’s complaint asserted an indirect chain of causation that
could be difficult to prove, it was sufficiently asserted to survive a motion to
dismiss.133 

3. Manufacturing Defect Theory.—A manufacturing defect typically results
from some type of unintended problem during the manufacturing process.134 Such
problems are often the result of human or mechanical error in the manufacturing
facility.135 The most common manufacturing defects involve contaminated
formulations or products that otherwise fail in some way to conform to their

123. Id.

124. No. 3:17-CV-032 JD, 2017 WL 4247983, at * 1 (N.D. Ind. Sept. 25, 2017).

125. Id. at *6.

126. Id. 

127. Id. at *6-7.

128. Id.

129. Id. at *6.

130. Id.

131. Id. at *7.

132. Id.

133. Id.

134. Product Liability: Manufacturing Defects vs. Design Defects, FINDLAW, https://corporate.

findlaw.com/litigation-disputes/product-liability-manufacturing-defects-vs-design-defects.html

[https://perma.cc/XP3Y-LSVL] (last visited Apr. 19, 2018).

135. See generally id.



2018] PRODUCT LIABILITY 1163

intended design specifications.136 As noted above, the manufacturing defect
theory is the only method of proving defectiveness in Indiana that is amenable to
so-called “strict” liability to the extent that the term equates with liability imposed
absent a finding of negligence or fault.137 Indeed, the IPLA allows for
manufacturing defect liability even if the seller has “exercised all reasonable
care.”138

The majority of the recent decisions in Indiana have involved design or
warning theories, but a few have involved manufacturing defect theories.139 Fisk
v. Medtronic, Inc., a 2017 case also discussed above in connection with an alleged
warning defect, is the most recent one addressing a manufacturing defect
theory.14 0 Recall that Fisk involved an allegedly defective pain pump catheter.141

The plaintiff alleged that the site of the catheter became infected and that the
catheter protruded from her abdomen.142 This defect allegedly occurred due to the
manufacturer’s failure to comply with the product’s manufacturing
specifications.143 The defendant argued that this claim was preempted because it
did not sufficiently plead that her injuries were caused by the violation of a
specific FDA regulation.144 The court rejected this argument, concluding that at
the motion to dismiss stage, the plaintiff was not required to “plead around” the
affirmative defense of preemption.145 The plaintiff’s claim—that a manufacturing
defect caused her injury—was a sufficient allegation of a state law claim, and the
Plaintiff had not “pleaded herself out of court by relying on requirements that
would necessarily be different from or in addition to those imposed by federal
law.”146

E. Regardless of the Substantive Legal Theory

Indiana Code section 34-20-1-1 makes clear that the IPLA governs all claims
for “physical harm” (as the IPLA defines that term) caused by the manufacture
or sale of an allegedly defective product “regardless of the substantive legal
theory or theories upon which the action is brought.”147 At the same time, Indiana

136. See generally id.

137. See generally IND. CODE § 34-6-2-2(1) (2017)

138. IND. CODE § 34-20-2-2(1). “Strict” liability for defects “in manufacturing and

preparation” is also subject to the additional requirement that the “user or consumer has not bought

the product from or entered into any contractual relation with the seller.” Id. § 34-20-2-2(2).

139. See, e.g., The Cincinnati Insurance Co. v. Lennox Industries, Inc., No. 3:14-CV-1731,

2016 WL 495600 (N.D. Ind. Feb. 9, 2016).

140. No. 3:17-CV-032-JD, 2017 WL 4247983 (N.D. Ind. Sept. 25, 2017).

141. Id.

142. Id. at *5.

143. Id.

144. Id.

145. Id. 

146. Id. at *6.

147. IND. CODE § 34-20-1-1 (2017).



1164 INDIANA LAW REVIEW [Vol. 51:1149

Code section 34-20-1-2 provides that the IPLA “shall not be construed to limit
any other action from being brought against a seller of a product.”

Indiana federal and state courts in recent years have nevertheless wrestled
with identifying exactly which claims the IPLA does not otherwise subsume or
eliminate in light of the “regardless of substantive legal theory” language of
section 34-20-1-1.148 The Indiana Supreme Court has made it clear that the IPLA
does not provide a remedy for purely economic loss claims that are rooted in
contract, warranty, and Uniform Commercial Code (UCC) theories of recovery.149

Those claims may be pursued, if at all, only under a contract-based or a UCC-
based theory of recovery and, thus, seem to be the obvious group of “other
actions” to which Indiana Code section 34-20-1-2 refers.150 Such an interpretation
is entirely consistent with Indiana’s economic loss doctrine, which precludes tort
recovery for purely economic losses.151 Indeed, several cases recently have
addressed issues in the context of the economic loss doctrine,152 including at least
four during the 2017 survey period: Watts Water Technologies v. State Farm Fire
& Casualty Co.,153 Affinity Mutual Insurance Co. v. NIDEC Avtron Automation
Corp.,154 Constructora Mi Casita v. Nibco, Inc.,155 and Direct Enterprises, Inc. v.
Sensient Colors LLC.156 

When it comes to losses that are not purely economic in nature, however, the
law is not as clear as it probably should be. The “regardless of substantive theory”

148. Id.

149. A few years earlier, the Indiana Supreme Court in Gunkel v. Renovations, Inc., 822

N.E.2d 150, 153 (Ind. 2005), likewise made clear that remedies for contract-based economic losses

and IPLA-based personal injuries or property damage are two fundamentally different things:

“Indiana law under the [IPLA] and under general negligence law is that damage from a defective

product or service may be recoverable under a tort theory if the defect causes personal injury or

damage to the other property, but contract law governs damage to the product or service itself and

purely economic loss arising from the failure of the product or service to perform as expected.”

Accord Atkinson v. P&G-Clairol, Inc., 813 F. Supp. 2d 1021, 1024 (N.D. Ind. 2011) (recognizing

that the remedies available under the IPLA and the UCC are different and independent from one

another).

150. IND. CODE § 34-20-1-1.

151. Such a reading of the statute is consistent with the “economic loss doctrine” cases that

preclude a claimant from maintaining a tort-based action against a defendant when the only loss

sustained is an economic as opposed to a “physical” one. See, e.g., Gunkel v. Renovations, Inc., 822

N.E.2d 150, 151 (Ind. 2005); Fleetwood Enters., Inc. v. Progressive N. Ins. Co., 749 N.E.2d 492,

495-96 (Ind. 2001); Progressive Ins. Co. v. Gen. Motors Corp., 749 N.E.2d 484, 488-89 (Ind.

2001); see generally Corry v. Jahn, 972 N.E.2d 907 (Ind. Ct. App. 2012). 

152. See Venturedyne, Ltd. v. Carbonyx, Inc., No. 2:14-CV-00351-RL, 2016 WL 3402807

(N.D. Ind. June 21, 2016); Indianapolis-Marion Cnty. Pub. Library v. Charlier Clark & Linard,

P.C., 929 N.E.2d 722 (Ind. 2010). 

153. 66 N.E.3d 983, 991-93 (Ind. Ct. App. 2016).

154. No. 1:16-CV-155-TLS, 2017 WL 3478851, at *2 (N.D. Ind. Aug. 14, 2017).

155. No. 3:16-CV-565-PPS-MGG, 2017 WL 3438182, at *5 (N.D. Ind. Aug. 9, 2017).

156. No. 1:15-cv-1333-JMS-TAB, 2017 WL 3314793, at *9 (S.D. Ind. Aug. 3, 2017).



2018] PRODUCT LIABILITY 1165

language in Indiana Code section 34-20-1-1 would seem to make the IPLA the
exclusive remedy in all cases in which a claimant contends that the sale or
manufacture of a defective product caused physical harm to a person or property
that is not purely economic. Indeed, ordinary principles of statutory construction
would require that any tension between Indiana Code section 34-20-1-1 and
Indiana Code section 34-20-1-2 be resolved in favor of the exclusivity
provision.157 The majority of recent decisions applying Indiana law have
recognized the exclusivity of the IPLA remedy when a claimant tries to use
common law negligence or breach of implied warranty theories to sue for
personal injuries or property damage attributable to the sale or manufacture of an
allegedly defective product.158 In those situations, the non-IPLA-based claims are
preempted and should be dismissed.159  

157. The U.S. Supreme Court has often held that a “statute’s saving clause cannot in reason

be construed as allowing a common law right, the continued existence of which would be

absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to

destroy itself.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 343 (2011) (internal quotation

marks, brackets, and citations omitted). 

158. See Fisk v. Medtronic, Inc., No. 3:17-CV-032-JD, 2017 WL 4247983, at *7 (N.D. Ind.

Sept. 25, 2017) (common-law negligence theories that duplicated IPLA theories, breach of warranty

theories, and negligent misrepresentation theory all dismissed in recognition of IPLA’s exclusivity);

see also Lyons v. Leatt Corp., No. 4:15-CV-17-TLS, 2015 WL 7016469 (N.D. Ind. Nov. 10, 2015);

Stuhlmacher v. Home Depot U.S.A., Inc., No. 2:10-CV-00467-JTM-APR, 2013 WL 3201572, at

*15-16 (N.D. Ind. June 21, 2013); Hathaway v. Cintas Corp. Servs., Inc., 903 F. Supp. 2d 669, 673

(N.D. Ind. 2012); Lautzenhiser v. Coloplast A/S, No. 4:11-cv-86-RLY-WGH, 2012 WL 4530804

(S.D. Ind. Sept. 29, 2012); Atkinson v. P&G-Clairol, Inc., 813 F. Supp. 2d 1021, 1024 (N.D. Ind.

2011); Gardner v. Tristar Sporting Arms, LTD., No. 1:09-cv-0671-TWP-WGH, 2010 WL 3724190,

at *2 (S.D. Ind. Sept. 15, 2010); Kovach v. Coligar Midwest, 913 N.E.2d 193, 197 (Ind. 2009);

Cincinnati Ins. Companies v. Hamilton Beach/Proctor-Silex, Inc., No. 4:05-CV-49, 2006 WL

2990604, at *2 (N.D. Ind. Feb. 7, 2006); Henderson v. Freightliner, LLC, No. 1:02-CV-01301-

DFH-WTL, 2005 WL 775929, at *3 (S.D. Ind. Mar. 24, 2005). 

159. See, e.g., Cavender v. Medtronic, Inc., No. 3:16-CV-232, 2016 WL 6599744, at *3 (N.D.

Ind. Nov. 8, 2016) (IPLA’s “regardless of the substantive legal theory” language is “pretty darn

clear” in terms of its exclusivity when it comes to common law-based tort claims and, accordingly,

the IPLA preempts common law-based negligence and breach of warranty claims); Parks v. Freud

Am., Inc., No. 2:14-cv-00036-LJM-WGH, 2016 WL 274875, at *5 (S.D. Ind. Jan. 22, 2016) ([T]he

“IPLA preempts any common law negligence theory of liability with respect to the burden of

proof.”). The “preempting” of common law negligence and tort-based implied warranty claims is

consistent with the IPLA in cases where the tortfeasing conduct that allegedly caused the personal

injury or property damage is the manufacture or sale of a defective product. There are, however,

some situations in which either the allegedly tortfeasing conduct was something other than

manufacture or sale of a defective product, when the harm was not “physical” in nature, or when

no “product” was involved in the first place. The IPLA does not preempt the common law theories

in those types of cases because the liability does not arise from the sale or manufacture of a

defective product, but rather some other type of negligent act or omission or harm. See generally,

Vaughn v. Daniels Co., 841 N.E.2d 1133 (Ind. 2006) (holding in a personal injury case, the injuries



1166 INDIANA LAW REVIEW [Vol. 51:1149

Many recent decisions have recognized IPLA exclusivity in product liability
cases, but describe the defunct common law-based claims as being “merged,”
“subsumed,” or “consolidated” into the IPLA.160 Although those terms are not
incorrect in the context of common law personal injury negligence claims that
would otherwise be covered by the negligence standard now applicable to design
and warning defect theories under the IPLA, they do not aptly describe what
should happen to tort-based breach of implied warranty claims because there is
no analog for those claims in the IPLA. It is hard to imagine how such claims
could survive on their own after being “merged,” “subsumed,” or “consolidated”
when the very statute into which they are being folded does not endorse them as
viable claims. The better term, therefore, seems to be “preempted,” particularly
when it comes to tort-based breach of implied warranty theories. And, the better
practice seems to be dismissal as opposed to allowing them to survive post-
“merger” along with viable IPLA claims.

Notwithstanding the majority of the cases that recognize IPLA exclusivity or
“preemption” in personal injury or property damage cases that involve the
manufacture or sale of an allegedly defective product, a handful of peculiar
decisions have allowed common law-based negligence claims to proceed along
with or in place of IPLA-based claims when the tortfeasing conduct was the
manufacture or sale of an allegedly defective product resulting in personal
injuries or property damage.161 Those decisions are difficult to square with the

did not result from plaintiff’s use of a “product”); Carson v. All Erection & Crane Rental Corp.,

811 F.3d 993 (7th Cir. 2016) (holding that in a personal injury case, the allegedly tortfeasing

conduct was not manufacture or sale of defective product, but rather the failure of the plaintiff’s

employer to properly inspect the product after it was delivered to a work site); Corry v. Jahn, 972

N.E.2d 907 (Ind. Ct. App. 2012) (holding the allegedly tortfeasing conduct was the failure to

employ adequate construction techniques rather than a defect in the manufacture or sale of a

product); Duncan v. M&M Auto Serv., Inc., 898 N.E.2d 338 (Ind. Ct. App. 2008) (holding that in

a personal injury case, the allegedly tortfeasing conduct was the negligent repair and maintenance

of a product as opposed to a defect in its manufacture or sale); Smith & Wesson Corp. v. City of

Gary, 875 N.E.2d 422 (Ind. Ct. App. 2007) (holding the alleged was not “physical” in the form of

deaths or injuries from gun violence, but rather the result of the increased availability or supply of

handguns). 

160. See, e.g., Bowersock v. Davol, Inc., 236 F. Supp. 3d 1074, 1084 (S.D. Ind. 2017)

(consolidated); Roper v. Advanced Neuromodulation Sys., No. 3:16-CV-79, 2017 WL 1367194,

at *3-*4 (N.D. Ind. Mar. 31, 2017) (merged); Cavender v. Medtronic, Inc., No. 3:16-CV-232, 2017

WL 1365354, *3-*7 (N.D. Ind. Apr. 14, 2017) (subsumed or merged); Estabrook v. Mazak Corp.,

No. 1:16-CV-87-TLS, 2017 WL 2166691, at *3 (N.D. Ind. May 17, 2017) (merged); Aregood v.

Givaudan Flavors Corp., No. 1:14-cv-00274-LJM-TAB, 2017 WL 2378258, at *9 (S.D. Ind. June

1, 2017) (subsumed); The Cincinnati Ins. Co. v. Lennox Industries, Inc., No. 3:14-CV-1731, 2016

WL 495600, at *3-4. (N.D. Ind. Feb. 9, 2016) (subsumed); Lyons ., 2015 WL 7016469, at *16

(subsumed); Lautzenhiser, 2012 WL 4530804 (merged); Atkinson, 813 F. Supp. 2d at 1024

(merged); Gardner, 2010 WL 3724190, at *2 (subsumed).

161. See, e.g., Kennedy v. Guess, Inc., 806 N.E.2d 776, 783-84 (Ind. 2004) (allowing a

personal injury plaintiff who could not otherwise impose liability against the defendant under the



2018] PRODUCT LIABILITY 1167

cases discussed above and the “regardless of substantive theory” language in the
IPLA.162

II. PLEADING REQUIREMENTS

Three key federal decisions during the 2017 survey period provided guidance
to practitioners when it comes to the level of pleading specificity required to
sustain product liability claims under Indiana law, particularly in light of the
heightened federal pleading standards the U.S. Supreme Court established in the
Iqbal and Twombly decisions.163 In all three cases, the complaints at issue did not
comply with the pleading standards.164

The first case, Roper v. Advanced Neuromodulation Systems, Inc., involved
an allegedly defective implantable pulse generator, which was a Class III medical
device regulated by the FDA.165 The device was subject to an express preemption
provision, which, in essence, mandated the dismissal of any state law claims
imposing obligations in addition to or different than the federal requirements.166

The case was before the court on the plaintiff’s first amended complaint, which
included a variety of claims based on common law, violations of federal law, and
violations of the IPLA.167 The manufacturer moved to dismiss the complaint
based on preemption.168 The court found it difficult to address the merits of the
preemption issue because the amended complaint failed to satisfy federal
pleading requirements under Ashcroft v. Iqbal169 and Bell Atlantic Corp. v.
Twombly.170 Four of plaintiff’s counts “basically parrot some of the elements
necessary to support the theory of liability without connecting any of the facts
found elsewhere in the complaint to the legal theory. Twombly teaches that more

IPLA to nevertheless pursue a negligence theory based upon section 400 of the Restatement

(Second) of Torts when the only alleged tortfeasing conduct was the sale of a defective product);

Ritchie v. Glidden Co., 242 F.3d 713, 726-27 (7th Cir. 2001) (allowing a personal injury claimant

to pursue a negligence theory based upon section 388 of the Restatement (Second) of Torts in a

case in which the only alleged tortfeasing conduct was the sale of a defective product); see

generally Brosch v. K-Mart Corp., No. 2:08-CV-152, 2012 WL 3960787 (N.D. Ind. Sept. 10,

2012); Warriner v. DC Marshall Jeep, 962 N.E.2d 1263 (Ind. Ct. App. 2012);  see also Deaton v.

Robison, 878 N.E.2d 499, 501-03 (Ind. Ct. App. 2007).

162. IND. CODE § 34-6-2-115 (2017). 

163. See generally Roper, 2017 WL 1367194, at *1; Bigsby v. Davol, No. 1:16-cv-00288-

TWP-MPB, 2017 WL 2472274, at *1 (S.D. Ind. June 8, 2017); Cavender, 2016 WL 6599744, at

*1.

164. See generally Roper, 2017 WL 1367194, at *1; Bigsby, 2017 WL 2472274, at *1;

Cavender, 2016 WL 6599744, at *1.   

165. 2017 WL 1367194, at *1.

166. Id. at *4.

167. Id. at *1-2.

168. Id. at *6.

169. 556 U.S. 662, 678 (2009).

170. 550 U.S. 544, 555 (2007).



1168 INDIANA LAW REVIEW [Vol. 51:1149

is required than mere labels and conclusions.”171 Ultimately, the court dismissed
the case without prejudice and granted the plaintiff leave to file a second amended
complaint, directing the plaintiff to clarify “the theories relied upon and the facts
that serve as the basis for those theories of recovery.”172 In doing so, the court
also cautioned plaintiff that she would not be given “endless” chances to amend
her complaint.173

Cavender v. Medtronic, Inc., presents another lesson on pleading in the
context of a defendant’s motion to dismiss on preemption grounds.174 This case
involved an allegedly defective medical device subject to an express preemption
provision.175 The plaintiff’s complaint set forth various theories of liability, but
it included only a few allegations of fact.176 The defendant moved to dismiss the
complaint on a variety of substantive matters, including preemption and the
failure to state valid warranty and IPLA claims.177 Although the court discussed
many of these substantive issues, it was unable to rule on the merits of many of
the defendant’s arguments because the complaint was insufficiently pleaded.178

The complaint was virtually devoid of factual assertions and merely recited the
elements of various legal theories in a conclusory way: “[the plaintiff’s] precise
claims, and the legal bases for them, are difficult to discern given that she fails to
include facts to define them. It is not sufficient to pay lip service to a cause of
action—a plaintiff must allege facts that tender the claim plausible.”179 The
remedy here was to dismiss the bulk of plaintiff’s claims without prejudice and
allow her to amend her complaint.180  

The third pleading case in the survey period, Bigsby v. Davol, Inc., involved
the dismissal with prejudice of a pro se plaintiff’s second amended complaint.181

That case involved an allegedly defective “hernia patch kit.”182 Although the
second amended complaint set forth the elements of an IPLA claim, it did so in
a conclusory manner without “sufficient factual support [for] a specific cause of
action.”183 The court relied on Ashcroft v. Iqbal1 8 4 and Bell Atlantic Corp. v.
Twombly185 when it reiterated the pleading sufficiency standard: the complaint
should contain “a short and plain statement of the claim showing that the pleader

171. Roper, 2017 WL 1367194, at*6.

172. Id.

173. Id. at *7.

174. No. 3:16-CV-232, 2016 WL 6599744, at *1 (N.D. Nov. 8, 2016).

175. Id. 

176. Id. at *7.

177. Id. at *2.

178. Id.

179. Id. at *7 (emphasis original).

180. Id.

181. No. 1:16-cv-00288-TWP-MPB, 2017 WL 2472274, at *1 (S.D. Ind. June 8, 2017).

182. Id.

183. Id. at *4.

184. 556 U.S. 662, 678 (2009).

185. 550 U.S. 544, 555 (2007).



2018] PRODUCT LIABILITY 1169

is entitled to relief—a right to relief that rises above the speculative level and that
is plausible on its face. This requires more than mere labels, conclusions, or
recitations of the elements of a cause of action.”186 The court also noted that a
previous court order had directed the plaintiff to correct these pleading
deficiencies in his second amended complaint.187 Because the plaintiff failed to
do so, dismissal with prejudice was appropriate.188

III. EVIDENTIARY REQUIREMENTS

Indiana state and federal courts frequently address evidentiary issues that
arise in product liability cases and often those evidentiary issues resolve the case
if, for example, the only admissible evidence of causation is excluded. In most
instances, decisions involving evidentiary requirements do not interpret or apply
the IPLA in the same ways as the cases addressed in the sections above.189 They
are, however, valuable for product liability practitioners because they provide
guidance as to the proof necessary to establish liability in cases in which the
operative theory of recovery is one that the IPLA embraces.190 Admissibility of
opinion witness testimony to establish causation has been the most frequently
addressed issue in this context.1 9 1 The 2017 survey period brought five more key
decisions involving the admissibility of opinion causation testimony and another
that addressed evidentiary requirements for product identification.192 We begin
our analysis with the product identification case and next address the opinion
causation cases.

A. Product Identification Evidence

In Smith v. Covidien, LLC, the plaintiff developed complications following
a surgical procedure in which her surgeon used absorbable sutures to close
subcutaneous tissue in her neck.193 Thereafter, an undissolved suture was

186. Bigsby, 2017 WL 2472274, at *4.

187. Id. at *5.

188. Id.

189. See supra Part II.

190. Id.

191. See generally The Cincinnati Ins. Co. v. Lennox Industries, Inc., No. 3:14-CV-1731, 2016

WL 495600 (N.D. Ind., Feb. 9, 2016) (case involved admissibility of opinion witness reports from

a fire investigator and an engineer); Piltch v. Ford Motor Co., 778 F.3d 628 (7th Cir. 2015) (role

of expert testimony in context of both design defect theory and manufacturing defect theory); see

also Timm v. Goodyear Dunlop Tires N. Am., Ltd., No. 2:14-CV-232-PPS-JEM, 2016 U.S. Dist.

LEXIS 89063, at *2 (N.D. Ind. July 8, 2016) (case involved admissibility of opinion testimony

related to allegedly defective tires); Leal v. TSA Stores, Inc., No. 2:13-CV-318, 2014 WL 7272751,

at *1 (N.D. Ind. Dec. 17. 2014) (need for expert testimony in design case); Simmons v. Philips

Elec. N. Am. Corp., No. 2:12-CV-39-TLS, 2015 WL 1418772, at *1 (N.D. Ind. Mar. 27, 2015)

(technical requirements for expert affidavits).

192. See the cases discussed supra note 191.  

193. No. 1:14-CV-326-TLS, 2017 WL 2335991 (N.D. Ind. May 30, 2017).



1170 INDIANA LAW REVIEW [Vol. 51:1149

discovered during a second surgical procedure and removed three months after
her initial surgery.194 Plaintiff sued Covidien, a manufacturer of dissolvable
sutures, claiming that one of its absorbable sutures had been used in the first
surgery and was defective because it had not dissolved.195 The second surgeon
had not retained the undissolved suture and it had not been examined to
determine whether its manufacturer could be identified.196 In addition, the second
surgeon was unable to identify the manufacturer of the removed suture.197

Plaintiff’s counsel wrote the first surgeon seeking to identify the
manufacturer of the undissolved suture.198 The surgeon’s response was not part
of the record before the court, but apparently was signed by him and purportedly
identified Covidien as the manufacturer;199 however, in his deposition, the first
surgeon did not recall authoring or signing the letter and testified that even
though it bore his signature and purported to come from him, the letter would
have been processed through someone else in his office in charge of inventory
management.200 During his deposition, the first surgeon testified that he did not
know who manufactured the suture used in the first surgery, nor did he know
whether the sutures used were tracked or coded in any way.201 Because the letter
purporting to identify the suture manufacturer was not part of the record and
would not contain admissible evidence of the suture’s manufacturer even if it
was, the court granted summary judgment to Covidien.202

B. Opinion Witness Causation Testimony

The first of the quintet of significant opinions related to expert witnesses and
causation decided this survey period is Bowersock v. Davol, Inc.203 In Bowersock,
Georgia Bowersock had a mesh hernia patch installed in her abdomen.204 A little
more than one year later, she reported to a local hospital with an abdominal wall
abscess that was draining pus and blood.20 5 A culture was taken and found to
contain a common type of skin bacteria.206 She returned to the hospital nine days
later and within days was placed on a ventilator.207 Within two weeks, she had

194. Id.

195. Id.

196. Id.

197. Id.

198. Id. at *4

199. Id. at *4-5.

200. Id. at *4.

201. Id. at *3.

202. Id. at *5.

203. 236 F. Supp. 3d 1074 (S.D. Ind. 2017).

204. Id. at 1078.

205. Id.

206. Id.

207. Id.



2018] PRODUCT LIABILITY 1171

passed away.208 A second culture of the abdominal wall abscess revealed the
presence of a bacteria that is commonly found in the gastrointestinal tract.209 An
autopsy was performed and her cause of death was listed as pneumonia and renal
failure.210

Bowersock’s estate disclosed several experts to support its claims the hernia
patch was defective and had come in contact with the decedent’s bowel, causing
the abscess to form, and ultimately, her death.211 The estate’s lead injury causation
expert was a well-qualified general surgeon212 who specialized in gastrointestinal
surgery.213 The doctor’s primary opinion was that the defective hernia patch
buckled and came into contact with Bowersock’s abdomen, which caused her to
develop sepsis and ultimately lead to her death.214 Ultimately, the court did not
allow the opinion for a number of different reasons: (1) the doctor’s theory was
not supported by pertinent medical literature or studies; (2) the condition he
described was not identified in Bowersock’s medical records; (3) even though the
expert opined he had seen the condition in other patients, he was unable to
identify any of them or provide their records for review and confirmation; (4) his
theory had never been peer reviewed; and (5) the failure mode to which he was
opining occurred had not been identified in other, similar hernia patches.215

Another of the estate’s purported opinion witnesses was a university
professor and biomedical engineer.216 As with the well-qualified surgeon, the
court determined that his opinion that the design of the hernia patch was defective
was similarly unreliable.217 He performed no testing, he was unable to identify the
amount of deformation required for the hernia patch to come in contact with the
bowel, he had never examined the patch at issue, and was relying on the opinion
of another expert who had been excluded.2 1 8 His opinion was likewise
disallowed.219

Finally, the estate identified the doctor who performed Bowersock’s autopsy,
Dr. Roland Kohr, as a “fact” witness, but, other than the initial autopsy report, did
not provide a written report authored by him.220 Thereafter, the estate provided

208. Id. at 1079.

209. Id.

210. Id.

211. Id. at 1079-82.

212. Id. at 1079. Dr. Stephen Ferzoco was the former director of Brigham Women’s Hernia

Center at Faulkner Hospital. 

213. Id. at 1079, 1087.

214. Id. at 1079-80.

215. Id. at 1085-87.

216. Id. at 1082. Plaintiff’s second expert was Dr. William Hyman, a professor of biomedical

engineering at Texas A&M University and former chair of the university’s biomedical engineering

program.

217. Id. at 1079.

218. Id. 

219. Id.

220. Id. at 1088.



1172 INDIANA LAW REVIEW [Vol. 51:1149

Dr. Kohr with additional information and sought to expand his role and have him
testify to matters not contained within his original autopsy report; specifically,
that had he known about the safety issues with the hernia patch he would have
rendered a different cause of death.221 The court did not allow the doctor to testify
to newly formed opinions and limited the doctor to only those opinions contained
within his autopsy report (that the decedent’s death was caused by pneumonia and
renal failure).222

The court noted the estate had to prove causation to establish its claims
against the hernia patch manufacturer.223 Because the court determined the
purported expert opinions did not withstand Daubert224 and Federal Rule of
Evidence 702 scrutiny, the estate failed to put forth evidence linking the
decedent’s injuries to a product-related defect.225 As a result, the court entered
summary judgment against the plaintiff.226

In Lyons v. Leatt Corp., the plaintiff, a professional ATV racer and motocross
rider, suffered a thoracic spinal cord injury during a mid-race crash, which left
him paralyzed.227 He sued the manufacturer of a neck brace he was wearing at the
time of the crash under a variety of product liability theories.228 The manufacturer
contended the brace was designed to reduce or eliminate cervical spine injuries.229

After excluding plaintiff’s expert witnesses,230 the court granted the brace
manufacturer’s motion for summary judgment.231

Citing Piltch v. Ford Motor Co.,232 the court opined that Indiana law requires
expert testimony establish both defect and causation when the issues involved are
outside the understanding of a layperson.233 The court reasoned that the plaintiff’s
catastrophic thoracic injuries were not the type of injury against which the brace

221. Id.

222. Id.

223. Id. at 1089.

224. Id. at 1084 (citing Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 816 (7th Cir.

2004) (“Under Rule 702 and Daubert, the Court follows a two-prong framework: the Court must

determine whether ‘(1) the proposed witness would testify to valid scientific, technical, or other

specialized knowledge[,] and (2) [the Court must determine whether] his testimony will assist the

trier of fact.’”) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); and FED. R.

EVID. 702).

225. Id. at 1089.

226. Id. Plaintiff filed a motion to amend or alter the judgment, but the court denied the motion

for the same reasons it had ruled against the plaintiff previously. Id. at 1089-91.

227. No. 4:15-CV-17-PRC, 2017 WL 4117775 *1, *5-7 (N.D. Ind. Sep. 14, 2017).

228. Id. at *1.

229. Id. at *2.

230. The opinion does not go into any depth or detail to explain why it excluded plaintiff’s

proffered experts.

231. Lyons, 2017 WL 4117775, at *1, 13.

232. 778 F.3d 628, 632 (7th Cir. 2015).

233. Lyons, 2017 WL 4117775, at *8.



2018] PRODUCT LIABILITY 1173

was designed to protect.234 The court did not find the plaintiff’s references to the
manufacturer’s product literature persuasive and concluded that, without expert
testimony to support the claims, the plaintiff could not prevail on his
manufacturing defect claims.235 Similarly, plaintiff’s attempts to maintain a claim
of negligent product design could not succeed: “[T]o allow a plaintiff to establish
the existence of a design defect by his mere assertion is ludicrous.”236 For his final
defect theory, the plaintiff claimed the manufacturer had a duty to warn him of
latent defects present in the use of the brace.237 Plaintiff relied upon his expert’s
opinions, but because the court had excluded the reports and opinions, this claim
failed as well.238 Finally, the court noted that in addition to proving defect, the
plaintiff’s claims also failed because, without expert testimony, the plaintiff was
unable to establish a causal link between his thoracic spine injuries and any defect
in the brace.239 The court wrote, “as with defect, expert testimony is required to
establish causation if the issue is outside the understanding of a lay person.”240

In Costanza v. Vulcan Ladder Co., the ladder manufacturer defendant sought
to exclude the opinion of the plaintiff’s expert witness and thereafter obtain
summary judgment.241 The defendant contended the plaintiff’s expert’s opinion
lacked foundation, and, the defense argument proceeded, its expert’s opinion
established the plaintiff’s expert’s opinion was incorrect.242 The court opined that
it must first determine whether the expert was qualified.243 It then must analyze
whether the expert’s reasoning or methodology was reliable.244 Finally, the court
had to determine whether the opinions were helpful.245 The defendant conceded
the opposing expert possessed the requisite credentials to qualify as an expert and
that, if allowed, the expert’s testimony would be helpful to the jury.246 The court
rejected the defendant’s arguments that the expert’s reasoning and methodology
were insufficient, noting that the plaintiff’s expert reviewed the pertinent
documents and information available, followed the applicable standards, and

234. Id. at *9.

235. Id. at *9-11.

236. Id. at *12 (quoting McClellon v. Thermo King Corp., No. 1:11-cv-01337-SEB-MJD,

2013 WL 6571946, at *10 (S.D. Ind. Dec. 13, 2013) (quoting Whitted v. Gen. Motors Corp.  ̧58

F.3d 1200, 1206 (7th Cir. 1995) (citing Bishop v. Firestone Tire & Rubber Co., 814 F.2d 437 (7th

Cir. 1987)).

237. Id. at *12.

238. Id.

239. Id. at *13.

240. Id. (citations omitted).

241. No. 1:13-CV-260-TLS, 2016 WL 7048799, *1 (N.D. Ind. Dec. 5, 2016). For a discussion

of the facts of the Costanza case, see supra Part I.D.2.

242. Id. at *2.

243. Id. at *3-5.

244. Id. at *4-6.

245. Id.

246. Id.



1174 INDIANA LAW REVIEW [Vol. 51:1149

relied upon the testimony of the plaintiff, all of which were appropriate.247 The
court, however, did not allow the plaintiff’s expert’s opinion related to feasible
alternative design to proceed because the expert had not established the feasibility
of his proposed alternative through any type of testing or validation.248 Because
the remainder of the expert’s opinions was allowed, the plaintiff was able to
establish a triable issue related to the adequacy of the warnings and instructions
on the ladder, i.e. defect, and causation between the plaintiff’s injury and the
claimed defect.249

The case of Dalton v. Teva North America,250 is a cautionary tale. The
plaintiff sued Teva North America under several product liability based theories
claiming that her intrauterine device caused her pain, discomfort and excessive
bleeding a few years after it was inserted.2 5 1 She attempted to have the device
removed, but a portion of it remained imbedded in her uterus.252 After the plaintiff
did not disclose any expert witnesses, the defendant moved for summary
judgment.253 Plaintiff claimed she did not need experts.254 She maintained that
once the jury heard the doctor testify about the unsuccessful removal of the entire
device, saw the x-rays demonstrating that a portion of the device remained
imbedded in her uterine wall, and reviewed the medical records, the jury’s verdict
would not be based upon speculation.255  

The court disagreed,256 noting that experts are generally required to establish
the existence of design defects and causation under Indiana law when such
matters are outside the understanding of a lay jury.257 In the case at hand, a jury
would be speculating about whether a defect in the IUD caused the plaintiff any
injury.258 The court noted that, based upon the evidence, it was equally likely that
a defect in the IUD, improper use, improper installation, or something else could

247. Id. at *5.

248. Id. at *6-7.

249. Id. at *10-11.

250. No. 3:15-cv-00162-RLY-MPB, 2017 WL 1365404 (S.D. Ind. Apr. 14, 2017).

251. Id. at *1.

252. Id.

253. Id.

254. Id. Plaintiff also made what the court construed as an alternative argument that if she

needed experts, she had them. The court rejected this argument too because plaintiff filed her expert

witness list after the defendant moved for summary judgment, but even then did not disclose any

opinions, provide any expert reports to support her claims or identify in her briefing what the

experts’ opinions were that supported her claims. See id. at *2.

255. Id. at *1.

256. Id. at *1-2.

257. Id. at *1 (citing Hartman v. Ebsco Indus., 758 F.3d 810, 818 (7th Cir. 2014)). The court

noted that in some cases experts may not be needed, but in cases involving pharmaceuticals (citing

Tucker v. SmithKline Beechman Corp., 701 F. Supp. 2d 1040, 1047 (S.D. Ind. 2010)) and when

issues involved complicated questions of medical causation (citing Hannan v. Pest Control Servs.,

734 N.E.2d 674, 679 (Ind. Ct. App. 2000)), experts were required. 

258. Id. at *1.



2018] PRODUCT LIABILITY 1175

be the cause of the plaintiff’s injuries.259 Similarly, all of these in addition to
improper removal of the device could have caused the plaintiff’s post-removal
symptoms.260 Plaintiff’s failure to provide expert testimony to support her claims
compelled the court to grant the defendant’s motion for summary judgment
because she was unable to establish a defect in the product as the cause of her
alleged injury.261

Finally, recall that in Smith v. Covidien, the plaintiff sued Covidien, claiming
that an absorbable suture had not dissolved causing her to suffer physical
injury.262 In addition to her claim failing because she was unable to identify the
manufacturer of the undissolved suture,263 the inability of plaintiff’s expert to
establish causation between a product defect and the injury also proved fatal to
plaintiff’s claim.2 6 4 Initially, Smith disclosed three experts, all of whom were
medical doctors.265 She later withdrew two and attempted to rely solely upon the
testimony of her first surgeon to establish a product defect.266 Relevant to her
claims, during the second surgical procedure, an undissolved suture was found
wrapped half to two-thirds around the accessory nerve in her neck.267 This caused
her to experience significant pain and weakness, among other things.268

The surgeon testified that damage to the accessory nerve is a known
complication of the surgery he performed, but he attempted, as he always does,
to avoid injuring her nerve during the procedure.2 6 9 Nonetheless, he was unable
to testify whether he did or did not wrap the suture partially around the accessory
nerve during the surgery, but admitted a suture could come in contact with the
nerve during the procedure.270 Further, after a suture was tied, he would not
expect it to move.271 The surgeon testified that either the suture or the suture
placement was most likely the cause of Smith’s injuries and admitted that Smith’s
pain and numbness complaints began immediately following the first surgery,
which was consistent with nerve contact.272 Subsequently, the surgeon
contradicted this testimony with an affidavit that he did not come in contact with
the nerve or wrap the suture around it during the surgery.273

The court rejected Smith’s claims, noting that her defect claims were not

259. Id.

260. Id.

261. Id. at *2.

262. No. 1:14-CV-326-TLS, 2017 WL 2335991, at *1 (N.D. Ind. May 30, 2017).

263. See supra discussion in Part III.A.

264. Smith, 2017 WL 2335991, at *7.

265. Id. at *1.

266. Id. at *2.

267. Id. at *1.

268. Id. at *6.

269. Id. at *5

270. Id. at *6.

271. Id.

272. Id.

273. Id. at *5.



1176 INDIANA LAW REVIEW [Vol. 51:1149

supported because she had not ruled out other causes of her injury or of the suture
not dissolving.2 7 4 The court reasoned that the expert’s affidavit averring that it is
unknown for a suture not to dissolve within ninety days was unreliable because
the expert testified that he only “occasionally” performed exploratory procedures
and “usually” the sutures would not be present.275 Moreover, Smith did not
establish that a defect caused the suture to be partially wrapped around her nerve
because the doctor did not opine about factors that may affect the absorption rate
of a dissolvable suture, could not opine that a defect caused the suture to migrate
around her nerve, or, despite his best efforts, it was tied too close to or in contact
with the nerve.276 Finally, the doctor never identified a defect in the suture.277 As
a result, the court concluded that Smith’s defect claims were based upon
speculation.278  

IV. STATUTES OF LIMITATION AND REPOSE

The IPLA contains a statute of limitation and a statute of repose for product
liability claims.279 The limitations period is two years from the date of accrual.280

The repose period is ten years from the date the product at issue was first
delivered to the initial user or consumer.281 If, however, the action accrues more
than eight years, but less than ten years, after initial delivery, then the claimant’s
full two-year limitations period is preserved even if the repose period would
otherwise expire in the interim.282 The General Assembly created an exception to
the statute of repose for certain types of asbestos-related actions, but in 2016, a
narrow majority of the Indiana Supreme Court held that this exception violates
the Equal Privileges and Immunities Clause of the Indiana Constitution.283

Indiana courts have issued a handful of other decisions in the last decade
involving the statutory limitations and repose periods, including one during the
2017 survey period.284 In Fisk v. Medtronic, Inc., the plaintiff’s complaint was

274. Id. at *7.

275. Id.

276. Id.

277. Id.

278. Id.

279. IND. CODE § 34-20-3-1 (2017).    

280. Id. § 34-20-3-1(b)(1).    

281. Id. § 34-20-3-1(b)(2).    

282. Id.

283. Id. § 34-20-3-2 provided the statutory exception. The majority in Myers v. Crouse-Hinds

Division of Cooper Industries, Inc., 53 N.E.3d 1160 (Ind. 2016), found that the statute violates the

Indiana Constitution. See also Alberts et al., supra note 70, at 1321-23.

284. See, e.g., Hartman v. Ebsco Indus., Inc., No. 3:10-CV-528-TLS, 2013 WL 5460296, at

*1 (N.D. Ind. Sept. 30, 2013); Technisand, Inc. v. Melton, 898 N.E.2d 303, 303 (Ind. 2008); Ott

v. AlliedSignal, Inc., 827 N.E.2d 1144, 1147 (Ind. Ct. App. 2005); C.A. v. Amli at Riverbend, L.P.,

No. 1:06-cv-1736-SEB-JMS, 2008 WL 140801, at *8 (S.D. Ind. Jan. 10, 2008); Campbell v.

Supervalu, Inc., 565 F. Supp. 2d 969, 977 (N.D. Ind. 2008).



2018] PRODUCT LIABILITY 1177

based on injuries sustained in connection with a pain pump catheter that was
implanted in 2000.285 In 2008, the pain pump was replaced, but the original
catheter remained implanted.286 The second pain pump was removed in 2013, but
the catheter remained implanted after that surgery as well.287 Sometime in late
2014, the site of the catheter became infected, and the catheter pierced through
the skin of the plaintiff’s abdomen.288 On January 7, 2015, the plaintiff’s catheter
was removed through surgery.289 The plaintiff filed her complaint on December
12, 2016, alleging that the catheter was defective.290 The manufacturer argued that
the plaintiff’s claims were barred by the two-year statute of limitations in Indiana
Code Section 34-20-3-1(b)(1).291 Specifically, the manufacturer argued that the
claims based on the first pain pump and the second pain pump were barred since
they were removed from the plaintiff’s body in 2013.292 The plaintiff did not
dispute this argument, and the court agreed that any claims involving the pain
pumps were time-barred.293 The crux of the plaintiff’s claims, however, centered
on difficulties with the catheter, which arose in “late 2014.”294 Because the
complaint was ambiguous as to the precise date on which the catheter began to
cause injury, the catheter claim was not, on its face, time-barred.295 Accordingly,
dismissal of the catheter claims arising from the “late 2014” injury and
subsequent surgery was inappropriate.296

V. FEDERAL PREEMPTION

Federal laws preempt state laws in three circumstances: “(1) when the federal
statute explicitly provides for preemption; (2) when Congress intended to occupy
the field completely; and (3) where state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress.”297  

Indiana state and federal courts frequently have wrestled with federal
preemption in product liability cases.298 The Fisk v. Medtronic, Inc. case,

285. No. 3:17-CV-032-JD, 2017 WL 4247983, at *1 (N.D. Ind. Sept. 25, 2017).

286. Id.

287. Id.

288. Id.

289. Id.

290. Id. at *2.

291. Id. at *3.

292. Id.

293. Id.

294. Id.

295. Id.

296. Id.

297. Thornburg v. Stryker Corp., No. 1:05-cv-1378-RLY-TAB, 2007 WL 1742172, at *5 (S.D.

Ind. June 12, 2007) (quoting JCW Invs., Inc. v. Novelty, Inc. 482 F.3d 910, 918 (7th Cir. 2007)).

298. See, e.g., Ward v. Soo Line Railroad Co., No. 2:14-CV-00001, 2016 WL 3402772, at *2

(N.D. Ind. June 21, 2016); Lane v. Boston Sci. Corp., No. 3:14-CV-1982, 2016 WL 5369596, at



1178 INDIANA LAW REVIEW [Vol. 51:1149

discussed above in connection with some other product liability issues, also
involved a federal preemption argument.299 Fisk involved an allegedly defective
pain pump catheter.300 The catheter was a Class III medical device; as such, it was
regulated by the FDA and subject to an express preemption provision that
prohibited states from establishing “any requirements that are different from or
in addition to those imposed by federal law.”301 The plaintiff’s complaint asserted
a variety of state law claims, including claims for manufacturing defect and
warning defect.302 In its motion to dismiss, the manufacturer argued that the state
law claims were expressly preempted because they imposed obligations different
from or in addition to the federal requirements.303  

The court disagreed.3 0 4 With regard to the manufacturing defect claim, the
plaintiff alleged that she was injured when the “catheter developed infections and
protruded through her skin because it was manufactured out of compliance with
its specifications.”305 The manufacturer argued that to survive preemption, the
plaintiff had to specifically plead that the device did not comply with federal
requirements.306 The court began its discussion by noting the procedural posture
of the case.307 A plaintiff is not required to anticipate and plead facts to defeat the
affirmative defense of preemption.308 Rather, a complaint will only be dismissed
based on an affirmative defense when “the plaintiff pleads herself out of court”
by expressly relying on “a state-law duty that would differ from the federal
requirements.”309 Such was not the case here because the plaintiff stated a valid
state law claim for manufacturing defect, and she did not “plead[] herself out of
court by relying on requirements that would necessarily be different from or in
addition to those imposed by federal law.”310 The court reached a similar
conclusion on the plaintiff’s failure to warn claim, which alleged that the

*1-2 (N.D. Ind. Sept. 26, 2016); Ossim v. Anulex Tech., No. 1:14-cv-00254-TWP-DKL, 2014 WL

4908574, at *2 (S.D. Ind. Sept. 30, 2014); Wilgus v. Hartz Mountain Corp., No. 3:12-CV-86, 2013

WL 653707, at *1 (N.D. Ind. Feb. 19, 2013); Cook v. Ford Motor Co., 913 N.E.2d 311 (Ind. Ct.

App. 2009), trans. denied, 929 N.E.2d 785 (Ind. 2010); Roland v. Gen. Motors Corp., 881 N.E.2d

722, 727 (Ind. Ct. App.), trans. denied, 898 N.E.2d 1218 (Ind. 2008); Tucker v. SmithKline

Beecham Corp., 596 F. Supp. 2d 1225, 1238 (S.D. Ind. 2008). See also Alberts et al., supra note

70, at 1323-26; Alberts et al., supra note 62, at 1143-45. 

299. See generally Fisk, 2017 WL 4247983.

300. Id.

301. Id. at *3.

302. Id. at *5-6.

303. Id. at *3-4. 

304. Id. at *7.

305. Id. at *5.

306. Id.

307. Id.

308. Id.

309. Id.

310. Id. at *6



2018] PRODUCT LIABILITY 1179

manufacturer failed to report information to the FDA.311 The manufacturer argued
that “the state-law duty to warn [was] not ‘identical’ to the federal requirement
to disclose information to the FDA”; accordingly, the state law claim was
preempted.312 The court disagreed, finding that the plaintiff’s failure to warn
claim was rooted in the manufacturer’s alleged violation of a federal law
requiring the reporting of certain information to the FDA.313 The court reasoned
that if the plaintiff could prove that her injuries were caused by this violation of
federal law, the claims would not be barred by preemption.314 Thus, the court
denied the manufacturer’s motion to dismiss this claim as well.315

311. Id.

312. Id. at *7.

313. Id.

314. Id.

315. Id.