Indiana Law Review


Survey of Recent Developments in Indiana
Product Liability Law

Joseph R. Alberts*
David M. Henn"

Introduction

The last year of the Twentieth Century was an important one in the further
development of Indiana product liability law.

1

During the 2000 survey period,2

Indiana courts made some landmark pronouncements, answered some questions,
and raised some new ones.

This Article does not attempt to provide a survey of all cases involving

Indiana product liability law decided during the survey period. Rather, it

addresses selected cases that are representative of the seminal product liability

issues courts applying Indiana law have handled during the survey period.
3 The

* Senior Litigation Attorney, Dow AgroSciences LLC, Indianapolis; B.A., cum laude,
1991, Hanover College; J.D., magna cum laude, 1994, Indiana University School of Law;
Chairman, Product Liability Section, Defense Trial Counsel of Indiana. The authors thank Brenda

Ferguson, Knight Anderson, James Boyers, and James Snyder for their contributions to this survey

Article.

** Shareholder, Stowers, Weddle & Henn, Indianapolis; B.A., 1991, Indiana University;
J.D., 1994, University of Louisville.

1

.

Although many commentators and courts use the term "products liability" when referring

to actions alleging damages as a result of defective and/or unreasonably dangerous consumer

products, the applicable Indiana statutes utilize the term "product liability" (no "s"). This Article

follows the lead ofthe IndianaGeneral Assembly and likewise employs the term "product liability."

2. The survey period for this Article is October 1, 1999 to September 30, 2000. Some

cases on the periphery of those dates are included.

3. There are at least two cases worthy of special mention here that this Article does not

address in detail. The first is Guerrero v. Allison Engine Co. , 725 N.E.2d 479 (Ind. Ct. App. 2000).

Although Guerrero is a case involving an allegedly defective helicopter engine, the case focuses

upon Indiana law as it relates to corporate successor liability. The plaintiffs were a passenger

injured in helicopter accident and the administrator ofthe estate of another passenger killed in the

accident. The plaintiffs sued the successor corporation that purchased all the assets of a division

of the company that manufactured the engines. At issue was whether a corporation that purchases

the assets of another assumes the debts and liabilities of the seller. See id. at 480-81. The court

first recognized the general rule that the successor corporation does not assume such liability unless

the predecessor corporation no longer exists and one ofthe following four conditions exist: ( 1 ) an

express or implied agreement to assume liability; (2) fraud to escape liability; (3) a de facto

consolidation; or (4) the buyer's continuation ofthe seller's business. See id. at 483. Because the

predecessor still existed and because the successor did not manufacture the engine, there was no

cause of action against the successor. See id. at 487.

The second case, Bloemker v. Detroit Diesel Corp., 720 N.E.2d 753 (Ind. Ct. App. 1999), is

worthy ofmention but is not discussed in detail in this Article because it is based upon Indiana law

before the 1995 Indiana Product Liability Act ("IPLA") amendments. In Bloemker, a pattern

maker, injured while modifying a pattern, sued the pattern owner and the owner of the premises



858 INDIANA LAW REVIEW [Vol. 34:857

Article also provides some background information and context where
appropriate.

I. Statute of Repose

Indiana Code section 34-20-3- 1(b) provides, in relevant part, that "a product
liability action must be commenced: (1 ) within two (2) years after the cause of
action accrues; or (2) within ten (10) years after the delivery ofthe product to the

initial user or consumer."
4

Practitioners generally refer to the latter of those

clauses as the product liability statute of repose.

In light of the Indiana Supreme Court's decisions in Martin v. Rickey' and
Van Dusen v. Stotts* product liability practitioners in Indiana anxiously awaited
word from the court about the fate ofthe product liability statute ofrepose.

7 On

(foundry) where the pattern was being used for negligence. The trial court entered summary

judgment for the defendant. See id. at 754-55. At issue on appeal was whether the pattern owner

and foundry owed duties ofreasonable care to the plaintiff in his capacity as a supplier ofa chattel.

See Restatement(Second)of Torts §§ 388, 392. Section 388 imposes a duty on a supplier who

knows or has reason to know that chattel is or is likely to be dangerous, has no reason to think those

using the chattel will realize it is dangerous and fails to inform them of the dangerous condition.

See Bloemker, 720 N.E.2d at 757. Section 392 is similar and adds a requirement that the supplier

exercise reasonable care to make the chattel safe for the use for which it is supplied. See id.

4. Ind. CODE § 34-20-3-1 (2001). Indiana Code section 34-20-3-l(b) also provides that

"if the cause of action accrues at least eight (8) years but less than ten (10) years after that initial

delivery, the action may be commenced at any time within two (2) years after the cause of action

accrues." Id. § 34-20-3- 1(b). As the statute makes clear, a claimant must bring a product liability

action in Indiana within two years after it accrues, but in any event, not longer than ten years after

the product is first delivered to the initial user or consumer. Such is true unless the action accrues

in the ninth or tenth year after delivery, in which case the full two-year period is preserved,

commencing on the date ofaccrual. See id. Accordingly, the longest possible time period in which

a claimant may have to file a product liability claim in Indiana is twelve years after delivery to the

initial user or consumer, assuming accrual at some point in the twelve months immediately before

the tenth anniversary of delivery.

5. 711 N.E.2d 1273 (Ind. 1999).

6. 712N.E.2d491(Ind. 1999).

7. The Martin case involved an alleged claim of medical malpractice against a physician

for failure to appropriately diagnose and treat her breast cancer. See Martin, 71 1 N.E.2d at 1276-

77. Martin did not discover her condition until more than two years from the occurrence of the

alleged malpractice and, therefore, beyond the act's two-year limitation period. See id. The Martin

court determined under these facts that application of the two-year occurrence-based statute of

limitations is unconstitutional under article I, section 23 of the Indiana Constitution because it is

not "'uniformly applicable"* to all medical malpractice victims given that victims such as Martin

are precluded from pursuing a claim in light of the prolonged period of time between the alleged

act of malpractice and the discovery of their condition. Id. at 1279. According to the court, the

statute of limitations, as applied to Martin, was also unconstitutional under article I, section 12 of

the Indiana Constitution because it required her to file a claim before she was able to discover the



200 1 ] PRODUCT LIABILITY 859

May 26, 2000, practitioners received their answer. In Mcintosh v. Melroe Co.,9

the Indiana Supreme Court, in a 3-2 decision, held that Indiana's ten-year product
liability statute of repose does not violate either sections 12 or 23 of article I of

the Indiana Constitution. The decision affirmed earlier decisions of both the
court of appeals

9
and the trial court. Justice Boehm wrote the majority opinion,

which Chief Justice Shepard joined. Justice Sullivan's concurring opinion
provided the three vote majority.

10

James Mcintosh was injured in a 1993 accident involving a Clark Bobcat
skid steer loader Melroe manufactured. Mcintosh and his wife sued Melroe,

claiming that a defect in the loader caused their injuries. Because it was
undisputed that the loader was delivered to its initial user in 1980, some thirteen
years before the incident involving Mcintosh, Melroe filed a motion for summary
judgment based upon the ten-year product liability statute of repose. The trial
court granted summary judgment and the court of appeals affirmed.

Just as they did at the court of appeals, the Mclntoshes and their amici
1 '

offered the supreme court a spirited and well-articulated attack on the product
liability statute of repose. With respect to article 1, section 12 of the Indiana

Constitution, the Mclntoshes argued that the statute of repose impermissibly

"'abrogates all of the tort protections provided by the common law."' 12 After
initially recognizing that its earlier decision in Dague v. Piper Aircraft Corp.

,3

might not have completely resolved the issue and that there is "no unique Indiana

history surrounding the adoption" ofsection 1 2 in either 1 81 6 or in its redrafting

in 1851,
14

Justice Boehm's opinion made it clear that the statute of repose is
consistent with each of Indiana's "differing lines" of section 12 doctrine:

In terms of pure civil procedural due process analysis, there is no issue.
The bar of the statute of repose in the [IPLA] does not purport to
regulate the procedure in the courts. Nor is the open courts requirement
violated because, as Dague held, it remains the province ofthe General
Assembly to identify legally cognizable claims for relief. If the law
provides no remedy, denying a remedy is consistent with due course of
law. Finally, there is no state constitutional 'substantive' due course of
law violation because this legislation has been held to be, and we again
hold it to be, rationally related to a legitimate legislative objective. It is

alleged malpractice and her resulting injury. See id. at 1282-85.

8. 729 N.E.2d 972 (Ind. 2000).

9. Mcintosh v. Melroe Co., 682 N.E.2d 822 (Ind. Ct. App. 1997).

1 0. See Mcintosh, 729 N.E.2d at 984.

1 1

.

Several prominent members ofthe Bar prepared an amicus curiae brief for the Indiana

Trial Lawyers Association in support ofthe Mclntoshes' arguments. The Indiana Defense Lawyers

Association and the Product Liability Advisory Counsel prepared amicus curiae briefs in support

of Melroe's arguments. See id at 972.

12. Mat 974.
13. 418N.E.2d207(Ind. 1981).

14. Mcintosh, 729 N.E.2d at 974.



860 INDIANA LAW REVIEW [Vol. 34:857

debatable whether the [IPLA] eliminated a common law remedy, but
even if it did, there is no substantive constitutional requirement that bars

a statute from accomplishing that.
15

The court rejected the Mclntoshes' argument "that they have a constitutional
right to a remedy for their injuries because the framers ofthe 185 1 Constitution
'decided not to give the General Assembly broad powers to abolish the common
law.'"

16
In essence, such an argument amounts to a "claim that common law

remedies may not be abolished," a prem ise that the supreme court has "strongly"
rejected.

17
Citing several Indiana cases including Martin™ Dague, 19 Sidle v.

Majors,
20
and Pennington v. Stewart,

21
Justice Boehm wrote that the "Court has

long recognized the ability of the General Assembly to modify or abrogate the
common law."22 In further elaborating, Justice Boehm noted:

[T]he legislature has the authority to determine what constitutes a legally

cognizable injury." . . . [Tjhere is no "fundamental right" to bring a

particular cause of action to remedy an asserted wrong. . . . Rather,
because individuals have "no vested or property right in any rule of

common law," the General Assembly can make substantial changes to
the existing law without infringing on citizen rights. . . . Because no
citizen has a protectable interest in the state of product liability law as

it existed before the [IPLA], the General Assembly's abrogation of the

common law of product liability through the statute of repose does not
run afoul ofthe "substantive" due course of law provision of Article I,

Section 12.
23

Justice Boehm's opinion makes it clear that if article I, section 12 does not
provide a remedy, the Indiana Constitution does not require one. Because the

General Assembly earlier determined that injuries occurring ten years after the
product was delivered to a user are not legally cognizable claims for relief, the
Mclntoshes were not entitled to a "remedy" under section 12. As such, the
statute of repose

does not bar a cause ofaction; its effect, rather is to prevent what might
otherwise be a cause of action from ever arising The injured party
literally has no cause ofaction. The harm that has been done is damnum
absque injuria—a wrong for which the law affords no redress.24

15. Id. at 976.

16. Id. at 976-77.

17. Mat 977.
18. Martin v. Richey, 71 1 N.E.2d 1273 (Ind. 1999).

19. Dague v. Piper Aircraft Corp., 418 N.E.2d 207 (Ind. 1981).

20. 341 N.E.2d 763, 775 (Ind. 1976).

21. 10N.E.2d619(Ind. 1937).

22. Mcintosh, 729 N.E.2d at 977.

23. Id. at 977-78 (internal citations omitted).

24. Id at 978 (quoting Lamb v. Wedgewood S. Corp., 302 S.E.2d 868, 880 (N.C. 1983)).



200 1 ] PRODUCT LIABILITY 86

1

In contrast to the Medical Malpractice Act as applied in Martin, Justice

Boehm recognized that in applying the IPLA to the case before the court, no one
who has an accrued claim is foreclosed from asserting it. Foreclosing accrual
of claims after a product has been in use for ten years is not an unreasonable

exercise oflegislative power, particularly in light ofthe fact that claims accruing
in the last two years ofthe ten-year period may be brought within two years after
accrual.

25
Accordingly, although the Indiana Constitution requires courts to be

open to provide a remedy by due course of law, "legislation by rational
classification to abolish a remedy is consonant with due course oflaw. Ifthe law
provides no remedy, Section 12 does not require that there be one."

26

Although the court rejected the Mclntoshes' argument that the Indiana

Constitution precludes the legislature from modifying or eliminating a common
law tort, the court's opinion nevertheless recognizes that the General Assembly's

authority is not without limits. Thus, the final section 12 issue that Justice

Boehm's opinion addresses is whether the product liability statute of repose is
a rational means ofachieving a legitimate legislative goal. After first recognizing
that "Section 1 2 requires that legislation that deprives a person ofa complete tort

remedy must be a rational means to achieve a legitimate legislative goal[,]"
27

25. See id.

26. Id. at 979. Commenting about the dissent's conclusion that article I, section 12

guarantees to each citizen a substantive right to remedy for injuries suffered, Justice Boehm wrote

that such a conclusion confuses "injury" with "wrong":

There is not and never has been a right to redress for every injury, as victims of natural

disasters or faultless accidents can attest. Nor is there any constitutional right to any

particular remedy. Indeed, as we have pointed out, some forms of"wrong" recognized

at common law have long since been abolished by the legislature without conflict with

the Indiana Constitution. . . . Ironically, the wrong the dissent contends in this case to

be preserved by the constitution against legislative interference, strict liability for

product flaws, did not exist in 1851 ; it was adopted as part of the [IPLA] in 1978

This further underscores the point that the common law was not frozen in 1851 and is

not chiseled in stone today. The dissent would imply that any judicially created tort

remedy, even if non-existent until over 100 years after the adoption of the Indiana

Constitution, cannot be abolished. Under this view, the door swings only one way:

causes of action may be created at common law and by statute, but no cause of action,

once it is created, may be eliminated.

As we observed in another context, the power to create is the power to destroy.

.

. . There is a fundamental difference between finding in the Indiana Constitution a

requirement to preserve a specific substantive rule of law (which is the net effect ofthe

dissent's position), and requiring that our courts be open to entertain claims based on

established rules of law.

Id.

27. Id. Justice Boehm recognized that the "rational means" test is a variation on the

substantive due process theme and imposes an overall test ofrationality very similar to section 23 's

rational relationship requirement. See id. at 980.



862 INDIANA LAW REVIEW [Vol. 34:857

Justice Boehm determined that the product liability statute of repose is such a
rational means. Citing Estate ofShebel v. Yaskawa Electric America, Inc.,2* the
court reaffirmed its earlier pronouncement that the statute ofrepose "represents
a determination by the General Assembly that an injury occurring ten years after
the product had been in use is not a legally congnizable 'injury' that is to be
remedied by the courts."

29
Such a decision is based on the legislature's "apparent

conclusion that after a decade of use, product failures are 'due to reasons not
fairly laid at the manufacturer's door.'"

30
Justice Boehm's section 12 analysis

continued:

The statute also serves the public policy concerns of reliability and
availability of evidence after long periods of time, and the ability of

manufacturers to plan their affairs without the potential for unknown
liability. The statute of repose is rationally related to meeting these
legitimate legislative goals. It provides certainty and finality with a

bright line bar to liability ten years after a product's first use. It is also

rationally related to the General Assembly's reasonable determination

that, in the vast majority of the cases, failure of products over ten years

old is due to wear and tear or other causes not the fault of the
manufacturer, and the substantial interest already identified warrant

establishing a bright line after which no claim is created.
31

Justice Boehm next turned his attention to the Mclntoshes' claim that the
product liability statute of repose violates article I, section 23

32
of the Indiana

Constitution because it creates an impermissible distinction between tort victims

injured by products more than ten years old and those injured by products less
than ten years old. The Mclntoshes also argued that the product liability statute
ofrepose impermissibly grants a privilege to manufacturers ofdurable goods that

28. 713 N.E.2d 275 (Ind. 1 999).

29. Mcintosh, 729 N.E.2d at 780.

30. Id (quoting Shebel, 713 N.E.2d at 278). Only a few months before the Mcintosh

decision, Justice Sullivan articulated the policy underlying the Indiana General Assembly's

enactment of the product liability statute of repose:

The policies underlying [the statute of repose] have been described as both a concern

for the lack of reliability and availability of evidence after long periods of time and a

public policy to allow manufacturers, after a lapse of a reasonable amount of time, to

plan their affairs with a degree of certainty, free from unknown potential liability.

Presumably there is also an underlying assumption that after ten years a product failure

is due to reasons not fairly laid at the manufacturer's door. In any event, the legislature

has determined that a product in use for ten years is no longer to be the source of its

manufacturer's liability. The wisdom of this policy is for the legislature.

Shebel, 713 N.E.2d at 278 (internal citations omitted).

3 1

.

Mcintosh, 729 N.E.2d at 980 (internal citations omitted).

32. The Indiana Constitution provides that "[tjhe General Assembly shall not grant to any

citizen, or class ofcitizens, privileges or immunities which, upon the same terms, shall not equally

belong to all citizens." Ind. Const, art. I, § 23.



200 1 ] PRODUCT LIABILITY 863

is not available to manufacturers of non-durable goods.

After first pointing out that the "classification" in the product liability statute

of repose is similar to most statutory classifications in that it "do[es] not define

a group of persons by some innate characteristic," but rather "consequences to
specified sequences ofevents that could touch anyone,"

33
Justice Boehm briefly

reviewed the court's seminal section 23 decision, Collins v. Day.
34

In applying Collins, the court first asked whether the product liability statute

of repose is reasonably related to the inherent characteristics that define the

distinction. The court answered the question in the affirmative. Justice Boehm
pointed out that there is no statutory classification of claimants because

"[ajnyone can present a claim and anyone can be barred by the statute, depending

on what product is the source ofthe claim."
35

In that connection, Justice Boehm
reiterated the policy basis supporting the statute ofrepose, namely the legislative

determination that product failures occurring more than ten years after delivery
to the first user are not fairly laid at the door ofthe manufacturer. Justice Boehm
also cited the certainty and finality that a statute of repose provides by limiting

the exposure of manufacturers to ten years after a product is first used.

Accordingly, the distinction "between persons injured by products less than ten

years old and those injured by products more than ten years old is rationally
related to serving these legislative goals and is a permissible balancing of the

competing interests involved."
36

The second prong of the Collins section 23 analysis "requires that the
preferential treatment provided by the statute of repose be uniformly applicable

to all similarly situated persons."
37 The Mcintosh majority agreed that the

product liability statute ofrepose satisfies that requirement. "Unlike the plaintiff

in Martin who had an otherwise valid tort claim but was unable to discover it
within the statute oflimitations," Justice Boehm explained, "the Mclntoshes have
never had a legally cognizable injury" because, on its face, the product liability

statute ofrepose applies to everyone.
38

According to Justice Boehm, the statute
prevents all citizens from accruing claims based on products in use longer than

a decade and the Mclntoshes are, therefore, treated no differently from any other

33. Id at 980-81.

34. 644 N.E.2d 72 (Ind. 1 994).

35. Mcintosh, 729 N.E.2d at 98 1 . In responding to Justice Dickson's dissenting opinion,

Justice Boehm took issue with Justice Dickson's beliefthat "'inherent characteristics ofthe people'

differentiate the statutory treatments." Id. at 982. On that score, Justice Boehm wrote:

It is the characteristic, inherent or not, of the underlying products with which the

'people' come into contact that produce the differentiated result. To take Collins as an

example, an agricultural worker and an industrial worker have no inherent

characteristics. The industry in which they are employed is the basis ofthe distinction.

Id

36. Id. at 981.

37. Id. at 982 (citing Martin v. Richey, 71 1 N.E.2d 1273, 1280 (Ind. 1999); Collins, 644

N.E.2d at 80).

38. Mat 983.



864 INDIANA LAW REVIEW [Vol. 34:857

person injured more than ten years after a product is first used or consumed.39

In an opinion that concurred in part and concurred in result in part, Justice

Sullivan agreed that the product liability statute of repose does not violate

sections 12 and 23, but he did so because, in his view, Dague v. Piper Aircraft
Corp.

40
and Beecher v. White

41
are precedent worthy of adherence. He

acknowledged that the court cited Dague approvingly in a section 12 context in
the case of State v. Rendleman

42
and that Beecher upheld the constitutionality

under section 23 of a ten-year statute of repose for claims arising from

architectural deficiencies.
43

The salient question for Justice Sullivan was whether the court's 1999
decisions in Martin and its two related cases

44
would produce a result different

from those in Dague, Rendleman, and Beecher. The answer, according to Justice
Sullivan, is "no." With respect to section 12, Martin "requires that the plaintiff

have "an otherwise valid tort claim'" and reiterates "an important point made in
Rendleman that 'the legislature has the authority to modify or abrogate common
law rights provided that such change does not interfere with constitutional

rights.'"
45

Because there is no valid product liability tort claim for a physical

injury occurring after ten years from date of delivery to the initial user or

consumer and because the harm allegedly suffered by the Mclntoshes occurred
outside of that period, Justice Sullivan agreed that the Mclntoshes did not have

the "otherwise valid tort claim" that Martin requires.
46

With respect to section 23, Justice Sullivan's answer was also "no" because
Martin recognizes that section 23 allows the legislature to create a statute of

limitations in the Medical Malpractice Act so long as it is uniformly applicable

to all medical malpractice victims.
47 From that, Justice Sullivan concluded that

section 23 "is no impediment to the legislature creating a statute ofrepose in the

[IPLA] so long as it is uniformly applicable to all products victims" and that the

Mclntoshes were treated no differently under the IPLA than "any other product
victim whose injury occurs more than ten years after delivery ofthe product to
an initial user or consumer."

48

Justice Dickson, in a dissenting opinion joined by Justice Rucker, believed

that the court should have held that the product liability statute ofrepose violates

both sections 12 and 23. Justice Dickson's dissent began with his view ofsection

39. See id.

40. 418N.E.2d207(Ind, 1981).

41. 447 N.E.2d 622, 627 (Ind. Ct. App. 1983).

42. 603 N.E.2d 1333 (Ind. 1992).

43. See Mcintosh, 729 N.E.2d at 984 (Sullivan, J., concurring).

44. See Harris v. Raymond, 715 N.E.2d 388 (Ind. 1999); Van Dusen v. Stotts, 712 N.E.2d

491 (Ind. 1999).

45. Mcintosh, 729 N.E.2d at 984-85 (Sullivan, J., concurring) (quoting Martin v. Richey,

711 N.E.2d 1273, 1283 (Ind. 1999)).

46. Id at 984.

47. See id. at 985.

48. Id.



200 1 ] PRODUCT LIABILITY 865

12: "In choosing the language of [section 12, the framers of the Indiana

Constitution] did not say that every person might have whatever remedy the
common law or the legislature may allow from time to time, nor did they merely
reiterate the language of the then-existing federal Due Process Clause."49

Moreover, according to Justice Dickson, the framers did not craft section 1

2

merely to provide "due process."
50

Instead, the framers "unequivocally enhanced

the protections" the Indiana Constitution affords, "expressly establishing the

additional right to remedy for injuries suffered."
51

After a briefhistory ofsection 12, which included references to other states'

"remedies" provisions, the Magna Carta, and Chief Justice Marshall's opinion
in Marbury v. Madison?1 Justice Dickson concluded that the right to a remedy
for injury is a "core value" that "'the legislature may qualify but not alienate.'"53

According to Justice Dickson:

While legislative qualifications of [the right to a remedy] may be
enacted under the police power, the total abrogation of an injured

person's right to remedy is an unacceptable material burden. The statute
of repose provision in the [IPLA] is no mere qualification. It does not
merely limit the time within which to assert a remedy, nor does it merely

modify the procedure for enforcing the remedy. Nor is it a narrow,
limited immunity necessitated by police power. On the contrary, the
repose provision completely bars the courthouse doors to all persons

injured by products over ten years old, even for claims alleging

negligence, and even where the products were designed, built, sold, and

purchased with the expectation of decades of continued use. Although

this provision denies all Indiana citizens access tojustice ensured by the
Right to Remedy Clause, it is especially pernicious to those
economically disadvantaged citizens who must rely on older or used
products rather than new ones.54

Justice Dickson began his section 23 analysis just as did Justice Boehm, by
citing Collins and its two-part test. Justice Dickson concluded, however, that the

product liability statute of repose violates the first Collins requirement "[b]y

artificially distinguishing as a separate class those citizens injured by defective

products more than ten years old, and by forbidding them access to legal recourse
for their injuries."

55
Justice Dickson believed that the majority's misapplication

49. Id. at 986 (Dickson, J., dissenting).

50. Id

51. Id

52. 5 U.S. (1 Cranch) 137 (1803).

53

.

Mcintosh, 729 N.E.2d at 987-88 (citing Price v. State, 622 N.E.2d 954, 960 (Ind. 1 993)

(Dickson, J., dissenting)).

54. Id. at 989-90 (citations omitted).

55. Id. at 991. The problem, according to Justice Dickson, was with the first of the two

Collins sub-elements, which requires that classification be "based upon distinctive, inherent

characteristics that rationally distinguish the unequally treated classes." Id.



866 INDIANA LAW REVIEW [Vol. 34:857

of Collins "beg[an] with its focus upon unequal treatment ofdifferent classes of
products, rather than upon unequally treated classes ofpeople"* On that point,
Justice Dickson wrote:

When a statute is challenged as violating Section 23, we must evaluate
the disparate treatment afforded to the benefited or burdened class.

Products are not sued; they do not receive immunity from suit under the
statute; and thus, they receive neither a benefit nor a burden. It ispeople

who receive unequal treatment under the statute.

Perhaps because it focuses upon products rather than people, the
majority bypasses the required threshold question as to whether the

legislative classification is based upon distinctive, inherent
characteristics that rationally distinguish the unequally treated classes.

This is sub-element ( 1 ) ofthe first ofthe two Collins requirements. The
majority fails to consider this prerequisite question. It is only when the
classification is based upon inherent distinctions that the analysis can
proceed to evaluate whether the disparate treatment is reasonably related

to the characteristics distinguishing the classifications.
37

After explaining why "the Indiana Constitution demands more than simply
a rational relationship between the legislative goal and the classification,"

58

Justice Dickson concluded as follows:

The unequal treatment provided by the repose provision of the
[IPLA] is wholly unrelated to any distinctive, inherent characteristics

that rationally distinguish the unequally treated classes of people. In

other words, there is nothing that naturally inheres in the group ofpeople

designated for unequal treatment that separates them into distinctive
classes. Theparties who are injured by defective products more than ten
years old do not necessarily differ from the parties who are injured by
such products that are only nine years old. The ten-year product age line
does not distinguish classes of people based upon their inherent
characteristics. Using such a line as a basis to treat unequally different

classes of people clearly violates both the language and the spirit of

Section 23.

[The product liability statute of repose] takes a natural class of

persons (users or consumers of a product), splits that class in two,

designates the dissevered factions of the original unit as two classes
(persons injured by a product within ten years of its delivery and persons

56. Id. at 991-92 (emphasis in original).

57. Id. at 992 (footnote omitted).

58. Id.



200 1 ] PRODUCT LIABILITY 867

injured by products more than ten years after its delivery), and enacts
different rules unequally governing each. Such discrimination is
unconstitutional.

59

In the wake of Mcintosh, practitioners are calling upon Indiana courts to
resolve the applicability ofthe ten-year product liability statute of repose in the

context of product liability cases alleging exposure to asbestos-containing

products. The issue is pending before the Indiana Court of Appeals in several
cases.

Indiana practitioners continue to argue about the applicable limitations and

repose periods in asbestos cases. The genesis of the controversy is the statute
now codified as Indiana Code section 34-20-3-2, which provides that "[a] product
liability action that is based on (1) property damage resulting from asbestos; or

(2) personal injury, disability, disease, or death resulting from exposure to

asbestos must be commenced within two (2) years after the cause of action
accrues."

60
That exception applies, however, "only to product liability actions

against: ( 1 ) persons who mined and sold commercial asbestos; and (2) funds that
have, as a result ofbankruptcy proceedings or to avoid bankruptcy proceedings,

been created for the payment of asbestos related disease claims or asbestos
related property damage claims."61

The crux of the debate concerns the phrase "persons who mined and sold
commercial asbestos." Plaintiffs argue that the "and" should be read as an "or,"

while defendants contend that the statute applies to create an exception to the

limitations and repose periods only for claims against those entities that both

mined and sold commercial asbestos. Two years ago, in Sears Roebuck & Co.
v. Noppert?

1
the court of appeals addressed the applicability of the ten-year

product liability statute of repose in the context ofa claim for alleged exposure

to asbestos. The Noppert court did so as part of a larger discussion about the
timeliness of a motion to correct errors pursuant to Rule 60(B) of the Indiana

Rules of Trial Procedure.
63

The second prong of the court of appeals
9
analysis focused upon the

propriety ofthe Nopperts' defense at trial because Indiana law required them to

show that they had a "meritorious defense" to Sears' summaryjudgment motion
ifthe court was to consider their motion to correct errors to be a Trial Rule 60(B)
motion.

64
The Noppert court concluded that, as a matter oflaw, the Nopperts did

not have a meritorious defense because the exception to the ten-year product

59. Id. at 993-94.

60. IND. CODE § 34-20-3-2 (1998) (formerly Ind. Code § 33-1 -1 .5-5.5). The statute further

provides that an action accrues "on the date when the injured person knows that the person has an

asbestos related disease or injury" and that the "subsequent development ofan additional asbestos

related disease or injury is a separate cause of action." Id

61. Id.

62. 705 N.E.2d 1065 (Ind. Ct. App.), trans, denied, 726 N.E.2d 300 (Ind. 1999).

63. See id. at 1066-67.

64. Id at 1067.



868 INDIANA LAW REVIEW [Vol. 34:857

liability statute of repose contained in Indiana Code section 34-20-3-2 applies
only to claims against persons who mined and sold commercial asbestos and
against funds described in that section.

65
With respect to the first category of

defendants (miners and sellers), the court made it clear that the entities to which
the statute applies are entities that both mined and sold commercial asbestos:
"[W]hile courts in Indiana have on occasion construed an 'and' in a statute to be
an 'or,

9 we find that there is no ambiguity in this statute requiring such an
interpretation."

66
Because the court determined that Sears did not fall into either

category, the "discovery" exception did not apply to it.
67

Because of the procedural context in which the court of appeals addressed
the substantive issue, asbestos plaintiffs and their counsel have since argued that

the substantive discussion in the court's opinion is merely obiter dicta. Whether
the ten-year product liability statute ofrepose applies to claims alleging asbestos-

related injuries is an intriguing question in light ofthe Indiana Supreme Court's
decisions in Mcintosh, Covalt, Martin, and Van Dusen, and in light of the fact
that some asbestos-related injuries can take years to develop. Practitioners await
the court's decisions in several pending cases and further guidance in this area.

II. Cases Interpreting Statutory Definitions

In Indiana, all claims filed by users or consumers
68
against manufacturers

69

65 . See id. The Nopperts argued that the asbestos "discovery" statute is an exception to the

application ofthe ten-year statute ofrepose in asbestos cases. In doing so, the Nopperts relied, in

part, on the Indiana Supreme Court's decision in Covalt v. Carey Canada, Inc., 543 N.E.2d 382

(Ind. 1989). See Noppert, 705 N.E.2d at 1067.

66. Id. at 1068 (footnote omitted).

67. See id. On petition to transfer to the Indiana Supreme Court, the Nopperts argued, in

part, that the court ofappeals' interpretation of Indiana Code section 33-1-1.5-5.5 violated article

I, sections 12 and 23 of the Indiana Constitution. The Indiana Supreme Court denied transfer on

August 18, 1999, without issuing an opinion. See Sears Roebuck & Co. v. Noppert, 726 N.E.2d
300 (Ind. 1999).

68. The IPLA defines "consumer" as:
(1) a purchaser; (2) any individual who uses or consumes the product; (3) any other

person who, while acting for or on behalf of the injured party, was in possession and

control of the product in question; or (4) any bystander injured by the product who

would reasonably be expected to be in the vicinity ofthe product during its reasonably

expected use.

Ind.Code§34-6-2-29(1998). "User" has the same meaning as "consumer." Seeid. §34-6-2-147.

69. "Manufacturer" is defined as "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). "Manufacturer" also includes a

seller who:

(1) has actual knowledge of a defect in a product; (2) creates and furnishes a

manufacturer with specifications relevant to the alleged defect for producing the product

or who otherwise exercises some significant control over all or a portion of the



200 1 ] PRODUCT LIABILITY 869

and sellers
70

for physical harm
71
caused by a product

72
are statutory. The IPLA

governs all such claims "regardless of the substantive legal theory or theories

upon which the action is brought."
73 The 1995 amendments to the IPLA

incorporated negligence principles in cases in which claimants base their theory

of liability upon either defective design or inadequate warnings.
74

"Strict

liability" remains only in cases in which the theory ofliability is a manufacturing

defect.
75 The 1995 amendments also limited actions against sellers,76 more

specifically defined the circumstances under which a distributor or seller could

be deemed a manufacturer,
77
converted the traditional state ofthe art defense into

arebuttable presumption,
78
and injected comparative fault principles into product

manufacturing process; (3) alters or modifies the product in any significant manner after

the product comes into the seller's possession and before it is sold to the ultimate user

or consumer; (4) is owned in whole or significant part by the manufacturer; or (5) owns

in whole or significant part the manufacturer.

Id. § 34-6-2-77(a).

70. "Seller" is defined as "a person engaged in the business of selling or leasing a product

for resale, use, or consumption." Id. § 34-6-2-136.

7 1

.

"Physical harm" is defined as "bodily injury, death, loss of services, and rights arising

from any such injuries, as well as sudden, major damage to property." Id. § 34-6-2- 105(a). It does

not include "gradually evolving damage to property or economic losses from such damage." Id.

§ 34-6-2-105(b).

72. "Product" is defined as "any item or good that is personalty at the time it is conveyed

by the seller to another party." Id. § 34-6-2-1 14(a). "The term does not apply to a transaction that,

by its nature, involves wholly or predominantly the sale of a service rather than a product." Id. §

34-6-2-1 14(b).

73. Id.§ 34-20-1-1.

74. See id. § 34-20-2-2.

75

.

See id. The editors ofBurns Indiana Statutes Annotated have included a title that could

be misleading to their readers. The short title the editors have chosen for section 34-20-2-2 is

"Strict Liability—Design Defect." See IND. CODE § 34-20-2-2 (2000). The juxtaposition of the

terms in that title might cause a reader to incorrectly assume that the statute provides for strict

liability in design defect cases.

76. See IND. CODE § 34-20-2-3 ( 1 998).

77. See id. § 34-20-2-4.

78. See id. § 34-20-5-1. The presumption is that the product causing the physical harm is

not defective and that the product's manufacturer is not negligent. See id. The IPLA entitles a

manufacturer or seller to such a presumption if,

before the sale by the manufacturer, the product: (1) was in conformity with the

generally recognized state of the art applicable to the safety of the product at the time

the product was designed, manufactured, packaged, and labeled; or (2) complied with

applicable codes, standards, regulations, or specifications established, adopted,

promulgated, or approved by the United States or by Indiana, or by any agency of the

United States or Indiana

Id



870 INDIANA LAW REVIEW [Vol. 34:857

liability cases.
79

For these reasons, cases interpreting the IPLA are ofthe utmost importance.
The following cases decided during the survey period define and interpret terms
to which the IPLA refers.

A. User or Consumer

In Butler v. City of Peru,
80

the Indiana Supreme Court granted transfer
specifically "to clarify the phrase 'user or consumer" in the [IPLA]."

81
James

Butler, a maintenance worker for Peru Community School Corporation, was
electrocuted in September 1993 while trying to restore power to an electrical
outlet near the Peru High School baseball field. The baseball field's electrical
equipment was installed around 1970.

James Butler's wife and estate sued the City of Peru and Peru Municipal
Utilities, alleging ten counts of negligence. Trie trial court granted summary
judgment for the defendants, and the court ofappeals affirmed.

82

79. The 1995 amendments changed Indiana law with respect to fault allocation and

distribution in product liability cases. See id. at § 34-20-7-1 . The Indiana General Assembly made

it clear that "a defendant is not liable for more than the amount of fault . . . directly attributable to

that defendant," as determined pursuant to section 34-20-8, nor can a defendant "be held jointly

liable for damages attributable to the fault of another defendant." Id. § 34-20-7-1.

The 1995 amendments now require the trier of fact to compare "the fault of the person

suffering the physical harm, as well as the fault ofall others who caused or contributed to cause the

harm." Id. § 34-20-8- 1(a). The statute requires that the trier of fact compare such fault "in

accordance with IC 34-57-2-7, IC 34-57-2*8, or IC 34-57-2-9." Those references appear to be

incorrect cross-references. Article 5 1 of Title 34 contains Indiana's Comparative Fault Act.

Sections 34-51-2-7 to -9 ofthe Indiana Code are, therefore, most likely the statutory provisions to

which the statute intends to refer. The IPLA mandates that:

[i]n assessing percentage of fault, the jury shall consider the fault of all persons who

contributed to the physical harm, regardless of whether the person was or could have

been named as a party, as long as the nonparty was alleged to have caused or

contributed to cause the physical harm.

Id. § 34-20-8-l(b).

Practitioners also should recognize that the definition of "fault" for purposes of the IPLA is

not the same as the definition of "fault" applicable in actions governed by the Comparative Fault

Act. Compare IND. CODE § 34-6-2-45(a) (1998), with IND. CODE § 34-6-2-45(b) (1998). For

purposes ofthe IPLA, the definition of"fault" does not include the "unreasonable assumption of

risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid

an injury or to mitigate damages." Id. § 34-6-2-45(b).

80. 733 N.E.2d 912 (Ind. 2000).

81. Id. at 9 1 4. The court also granted transfer to "reiterate the correct standard for summary

judgment under Trial Rule 56." Id.

82. See id. at 914-15. The theory of negligence was based upon "'the close proximity of

high power lines to low power lines and the lack ofany proper warning regarding, or insulation of,

the high power lines.'" Id. at 914.



200 1 ] PRODUCT LIABILITY 87

1

The supreme court's opinion focused first on Indiana's summary judgment
standard in the context ofnegligence and duty issues.

83
The court next turned its

attention to the IPLA. Indiana Code section 34-20-2-1 provides, in relevant part:

[A] person who sells, leases, or otherwise puts into the stream of
commerce any product in a defective condition unreasonably dangerous
to any user or consumer or to the user's or consumer's property is
subject to liability for physical harm caused by that product to the user
or consumer . . . if . . . that user or consumer is in the class of persons
that the seller should reasonably foresee as being subject to the harm
caused by the defective condition

M

The trial and appellate courts both concluded that James Butler was not a
"user or consumer" of a product under the IPLA because he simply did not fit
within any of the foregoing definitions.

85 The court of appeals reasoned that
James Butler was not a purchaser of the product, that he did not consume the
product, that he did not possess it while acting on behalfofan injured party, and

that he was not a bystander. Thus, the only definition of consumer that
conceivably could apply to James Butler was "any individual who uses ... the
product."

86
Quoting Thiele v. Faygo Beverage, Inc.*

1
the court of appeals

reiterated that the *" legislature intended "user or consumer" to characterize those

who might foreseeably be harmed by a product at or after the point of its retail
sale or equivalent transaction with a member of the consuming public.'"88 In
light of Thiele, the court determined that James Butler was not a "user" of the
electricity product, and that the trial court did not err in determining that the

83. See id at 915-18.

84. Ind. CODE § 34-20-2-1 (1998).

85. See supra note 68 for a discussion of "user" and "consumer.'* The court of appeals

rather narrowly phrased the product liability issue as whether the IPLA applies 'when an electrical

utility customer's employee is injured on the customer's premises by a defect in an electrical

installation" the utility did not perform. Butler v. City of Peru, 714 N.E.2d 264, 265 (Ind. Ct. App.

1 999), vacated by 733 N.E.2d 912 (Ind. 2000). The court ofappeals agreed with the trial court that

the IPLA did not apply because "James Butler was not a 'consumer'" of electricity. Id. at 267. In

doing so, the court was quick to point out that "electricity can be a 'product' within the meaning

ofthe [IPLA]," and that "[determining whether a plaintiff is a consumer within the meaning ofthe

[IPLA] is a pure question oflaw." Id. at 267 (citing Pub. Serv. of Ind., Inc. v. Nichols, 494 N.E.2d

349 (Ind. Ct. App. 1986)). According to the court of appeals,

of all ofthe potential plaintiffs who might be injured by a defective product, those that

have been granted the protection ofthe [IPLA] has been doubly limited to ( 1 ) users and

consumers (2) whom the seller should reasonably foresee as being subject to the harm

caused by the product's defective condition.

Id.

86. Id. at 268.

87. 489 N.E.2d 562 (Ind. Ct. App. 1 986).

88. Butler, 714 N.E.2d at 268 (quoting Theile, 489 N.E.2d at 586).



872 INDIANA LAW REVIEW [Vol. 34:857

IPLA did not apply.89

Although the Butlers did not technically present a claim governed by the
post- 1 995 IPLA, the supreme court nevertheless took the opportunity to address
the IPLA issue.90 The supreme court agreed that the Butlers had no viable claim
under the IPLA, but not because James Butler was not a "user or consumer."
According to the supreme court, "the [s]chool was the ultimate user of the
electrical transmission system and the electricity. As an employee of a
'consuming entity,' Butler falls under the definition of 'user or consumer'

established in Thiele.'
191

The court then concluded as follows:

We do not suggest that Peru had any exposure under the [IPLA].
Although Peru obviously furnished the electricity within the [IPLA]'s

period of limitations, the same is not true of the electrical equipment
regardless of Peru's role in its manufacture, design, or construction.

Peru is correct that the baseball field electrical equipment was installed
in approximately 1970—well over the ten-year statute of repose for the
[IPLA]. Accordingly, no claim may be brought under the [IPLA] on the
basis of defects in that equipment.

92

Practitioners may recall that the Indiana Supreme Court recently addressed
the issue ofwho qualifies as a "user or consumer" for purposes of applying the
ten-year product liability statute of repose. In Estate of Shebel v. Yaskawa
Electric America, Inc.,

93
the court held "that a 'user or consumer' under [the

IPLA] includes a distributor who uses the product extensively for demonstration
purposes" and that the repose period commences with delivery for such a use.94

89. See id.

90. See Butler v. City of Peru, 733 N.E.2d 912, 918 (Ind. 2000). The Butlers filed their

complaint on January 13, 1995. See id. The applicable law was, therefore, the pre- 1995 version

of the IPLA, which governed only those "actions in which the theory of liability is strict liability

in tort." Ind. Code § 33-1-1.5-1 (1993). None of the Butlers' claims was based upon strict

liability. Indeed, the Butlers apparently conceded in their briefs to the trial court and to the court

of appeals that the IPLA did not apply because there was no "product" involved. Butler, 733

N.E.2d at 91 8 n. 3. The Butlers "changed tactics" and argued to the supreme court that the IPLA

"did apply because electricity was a product although the wiring was not." Id.

91. Buffer, 733 N.E.2d at 919.

92. Id (citing Mcintosh v. Melroe, 729 N.E.2d 972 (Ind. 2000)). Although the Butler court

recognized that electricity might be considered a "product" under the IPLA, the Butlers did not

offer any theory about "why the electricity—as distinct from the configuration of the
equipment—was defective or unreasonably dangerous." Id. Accordingly, there simply was no
evidence that the electricity at issue could be considered a '"product in a defective condition

unreasonably dangerous to any user or consumer.'" Id (citing IND. CODE § 34-20-2-1 (1998)).

93. 713 N.E.2d 275 (Ind. 1999).

94. Id. at 276.



200 1 ] PRODUCT LIABILITY 873

B. The Property Damage Cases

Four cases decided by the court of appeals during the survey period,
Interstate Cold Storage, Inc. v. General Motors Corp.,

95
1/N Tek v. Hitachi,

Ltd.,
96

Progressive Insurance Co. v. General Motors Corp.,
97

and Hitachi
Construction Machinery Co. v. Amax Coal Co. 9% all confirmed that the IPLA
does not allow a claimant to recover for damages to the defective product itself.

In Interstate, a General Motors (GM) vehicle caught fire and was declared
a total loss. The Interstate employee driving the vehicle at the time was not
injured and no other property was damaged as a result ofthe fire. Interstate sued
GM, alleging strict liability, negligence, and breach of warranty." GM moved
for summaryjudgment, arguing that the IPLA does not permit recovery when the
only damage suffered is to the allegedly defective product itself. The trial court
agreed and granted summaryjudgment to GM with respect to the strict liability
and negligence claims.

100
In doing so, the trial court found that the IPLA's

"physical harm" requirement "means bodily injury, death, loss of services, and
rights arising from any such injuries, as well as sudden major damage to property
other than to the product itself."

101
Interstate appealed. "Physical harm" for

purposes of the IPLA means "bodily injury, death, loss of services, and rights
arising from any such injuries as well as sudden, major damage to property. The
term does not include gradually evolving damage to property or economic loss
from such damage."

102

After recognizing that the parties did not dispute that the damage to the
vehicle involved was "sudden" and "major," the Interstate court turned to the
case of Martin Rispens & Son v. Hall Farms, Inc., 103 for guidance. There, the
Indiana Supreme Court held that "[ejconomic losses are not recoverable in a
negligence action premised on the failure of a product to perform as expected

unless such failure causes personal injury or physical harm to property other than
the product itself."

104

In the Martin Rispens case, the plaintiffs loss was a gradually evolving
damage, which Interstate noted is specifically excluded from the IPLA's

95. 720 N.E.2d 727 (Ind. Ct. App. 1999).

96. 734 N.E.2d 584 (Ind. Ct. App. 2000).

97. 730 N.E.2d 218 (Ind. Ct. App. 2000).

98. 737 N.E.2d 460 (Ind. Ct. App. 2000).

99. See Interstate Cold Storage, Inc., 720 N.E.2d at 729.

1 00. See id. GM moved for summaryjudgment on the breach ofwarranty claim as well. GM
withdrew that part of the summary judgment motion at the hearing. After the trial court granted

summaryjudgment on the two other counts, the parties jointly stipulated to dismiss with prejudice

the breach of warranty count. See id. at 729 n.l.

101. Id. at 730 (emphasis in original).

102. Ind. CODE § 34-6-2-105 (1998).
103. 621 N.E.2d 1078 (Ind. 1993).

104. /^. at 1091.



874 INDIANA LAW REVIEW [Vol. 34:857

definition of"physical harm."
105

Accordingly, Interstate argued that application

ofthe "economic loss" rule articulated in Martin Rispens should be limited to the
facts of that case and should be read to mean only that the IPLA is inapplicable
to claims of gradually evolving damage to the product itself. 106 The court of
appeals disagreed:

It may well be that the supreme court intended its statements in
Martin Rispens to encompass only the gradually evolving damage found
in that case, although they are not by their express terms so limited.
However, the language of the [IPLA] supports an extension of that
statement to even the "sudden, major damage" we have here. The
[IPLA] states that the manufacturer of n product is liable for physical

harm caused by thatproduct to the user's property. Thus, although it is
possible in general terms for the product to also be the property of the
user, the [IPLA] does not use the terms "product" and "property"

interchangeably. The language ofthe [IPLA] contemplates the defective
product action on some other property causing some harm to it.
Accordingly, we must disagree with Interstate's contention that "the
[IPLA] does not draw any distinction between the product itself and
other property owned by the user or consumer " The trial court did
not err in granting summary judgment as a matter of law for GMC on
Interstate's claims under the [IPLA].

107

A short time after Interstate, another panel of the court of appeals faced
essentially the same issue in I/N Tek v. Hitachi, Ltd. m In that case, Hitachi
supplied equipment that comprised a tandem steel mill operated by I/N Tek. The
tandem mill consisted offour internal chambers or "stands," through which steel

passed during processing. Each stand contained several work rolls, which the
court described as cylindrical parts that move the steel through the mill.
Attached to the back ofthe housing was a reel, onto which the steel was wound
after passing through all four stands. The four internal stands and the reel were
component parts that were not severable from the mill and unable to function in
a stand-alone capacity. In February of 1995, a shaft attached to a pinion gear in

one of the stands failed, causing damage to the tandem mill and its component
parts. No person was injured. 109

As a result of the incident, I/N Tek sued Hitachi, alleging product liability
and negligence. Hitachi moved for summary judgment, arguing that the IPLA
precluded I/N Tek from recovering because it suffered no damage other than to
the tandem mill itself.

110
The trial court agreed with Hitachi, finding that I/N Tek

1 05. See Interstate Cold Storage, Inc. , 720 N.E.2d at 73 1

.

106. See id.

1 07. Id. (emphasis added) (internal citations omitted).

1 08. 734 N.E.2d 584 (Ind. Ct. App. 2000).

109. See id. at 585-86. Although no one suffered personal injuries, a steel coil owned by

Inland Steel Company was in process at the time ofthe incident and was damaged. See id. at 586.

110. See id.



2001 ] PRODUCT LIABILITY 875

did not suffer any damage to real or personal property separate and apart from
damage to the mill itself. According to the trial court, the fact that some of the
damaged component parts were replacement parts not manufactured by Hitachi
did not "alter the undisputed fact that they were part and parcel ofthe 'product,'

the Number 1 Mill Stand." 111

On appeal, I/N Tek argued that when damage is "sudden and major" the
IPLA allows recovery regardless ofwhether only the product itselfor the product
in addition to other property is damaged.

112 The court of appeals first
acknowledged that the essential issue for the trial court was whether the IPLA
applies to damage to the defective article itself, which ultimately led to its
conclusion that "property" is separate from the "product."

1 ,3
Just as was the case

in Interstate, the I/N Tekcourt examined the IPLA definitions of"physical harm"
and "product," in addition to Indiana Code section 34-20-2- 1. 114 The court
quickly pointed out that I/N Tek's argument was the same as the one that failed
in Interstate. The I/N Tek court reasoned that the language of the IPLA itself,
together with the Martin Rispens holding, compelled the same decision as the
one reached in Interstate: the IPLA requires damage to property other than the
product itself.

115

Moving beyond the threshold question, the I/N Tek court recognized that
there was an "other property" issue to be resolved.

116
In Interstate, the only

property damaged was the allegedly defective property itself. In the case before
it, however, I/N Tek designated evidence that some ofthe damaged component
parts of the tandem mill were replacement parts not manufactured by Hitachi.

I/N Tek argued that those parts should be viewed as "other property." The court
of appeals disagreed, citing the U.S. Supreme Court's decision in East River

Steamship Corp. v. TransamericaDelaval, Inc.
ul

as compelling authority.
118 The

court ultimately concluded as follows:

Although the parts were not originally part ofthe tandem mill and were

not manufactured by Hitachi, they were integral to the mill. None ofthe
component parts ofthe mill, including the replacement parts, were able

to stand alone. We consider "other property" to be that which is wholly
outside and apart from the product itself. Thus, the damage caused to
the replacement parts of the tandem mill is not sufficient to constitute

physical harm to I/N Tek's property within the meaning of [the IPLA],
and the trial court did not err in granting Hitachi's motion for summary

111. Id.

112. Id. at 587.

113. Id

114. See id

115. See id.

116. Id. at 588.

117. 476 U.S. 858 (1986).

118. See I/N TeK 734 N.E.2d at 588.



876 INDIANA LAW REVIEW [Vol. 34:857

judgment.
119

A little more than a month after the decision in I/N Tek, the court ofappeals
revisited the property damage issue. In Progressive Insurance Co. v. General
Motors Corp.,

120
three insurance companies sued automobile manufacturers

General Motors and Ford in subrogation in five separate cases after vehicles were
destroyed in fires. In each instance, the vehicles themselves were the only
property damaged in the fires. The trial court granted some of the motions for
summary judgment and denied some others. A consolidated appeal ensued. 121

The question before the court of appeals was "whether the insurance
companies, by subrogation, may recover in tort under theories of strict liability
and negligence for damage sustained by the vehicles after they caught fire.
Specifically, the issue was whether the [IPLA] allows recovery for this type of
loss."

122 As in Interstate, the defendants argued that because the damage was
"sudden and major," they were entitled to summary judgment for claims based
upon the IPLA because the insurance companies could not recover for a purely
economic loss to the property (vehicles) themselves.

123

As did the courts in Interstate and I/N Tek, the Progressive court first cited
both Indiana Code section 34-20-2-1 and the definition of "physical harm."124

The Progressive court next discussed Martin Rispens, recognizing as follows:

Barring recovery under the [IPLA] when only the product itself is
damaged is founded upon the core separation between tort law and
contract law. The distinction is based upon a manufacturer's differing
responsibilities in placing its product into the stream ofcommerce and
the balancing ofrisks. While a manufacturer should be held liable if its

product causes physical harm to a person or other property, it should not
be held accountable if its product does not perform to the consumer's

economic expectations unless the manufacturer guarantees the product's

performance. If the manufacturer guarantees performance, then it

undertakes the risk of loss, and that allocation of risk is best handled by

contract principles including warranty law.
125

119. Id.

120. 730 N.E.2d 218 (Ind. Ct. App. 2000).

121. See id. at 2 1 9. The three insurers were Progressive Insurance Co., United Farm Bureau

Insurance Co., and Foremost Insurance Co. The vehicles involved included a 1994 GMC Jimmy,
a 1 992 Ford F450, a Chevrolet C 1 500 Suburban, a Newmar Motor Home containing a Ford chassis
and engine, and a 1 995 Ford F600. In four ofthe five situations, defective wiring allegedly caused

the fires. In the other case, a defective fuel line allegedly caused the fire. In one of the defective

wiring cases, the insurer also alleged defects in the fuel line and transmission line. See id.

1 22. Id. at 2 1 9-20 (footnote omitted).

123. Mat 220.
124. See id.

125. Id. (internal citations omitted). The court also cited secondary sources in further support

of its reasoning. See Jay M. Zitter, Annotation, Strict Products Liability: Recoveryfor Damage

to Product Alone, 72 A.L.R. 4th 12 (1989 & Supp. 1999); 63B AM. JUR. 2d Products Liability §§



200 1 ] PRODUCT LIABILITY 877

Although acknowledging Interstate and recognizing Justice Krahulik's decisions

in Martin Rispens, and Reed v. Central Soya Co., 126 the Progressive court
nevertheless seemed troubled by "the proposition that a consumer may not
recover under the [IPLA] for damage caused by a defective product unless the
product also damages other property or injures a person."

127
Because, as the

court wrote, it was not "at liberty to recast [Justice Krahulik's] opinions," it was
constrained to affirm the trial court's entry ofsummaryjudgment for GM in two
ofthe cases and to reverse the denials ofsummaryjudgment in the other three. 128

The Progressive court continued, however, acknowledging that the IPLA
"seems to allow more than one interpretation" and that the statute's use of the
terms "product" and "property" is probably meaningless to consumers, most of

whom consider all of their belongings to be property. 129 The court also
recognized that barring recovery for damage to the product itself leaves both
remote users and original purchasers without a remedy. While conceding that
consumers have other ways to recover, such as a manufacturer's warranty, the
court was concerned about the "practical reality" that some remote users who do
not purchase the vehicle directly from the manufacturer might not have

recourse.
,3° The court was equally concerned about original purchasers who may

"find themselves without a remedy if they do not comport with strict warranty

requirements. It may be considered inequitable to leave such a large number of
consumers without a remedy, while allowing manufacturers who have placed a
defective product in the market to remain free from liability."

131

Openly troubled by what it called the "illogical" justification underlying the
economic damage rule—"that consumers have other options ofrecourse when the
product itself is damaged"—the Progressive court pointed out that when "other
property" is damaged by a defective product, "consumers do not have any other
method by which to recover for their loss."

132 To illustrate its point, the court
posed the following "practical situation":

[A] consumer who owns two vehicles, one Ford and one GM, stores
them beside each other in his garage. The Ford begins smoking due to
defective wiring, and the resulting fire destroys both the Ford and the

GM and causes damage to the garage. Under current law, this consumer
could recover under the [IPLA] for the damage caused to hisGM and his
garage, but he could not recover for the Ford, which originated the fire.

After putting the [IPLA]'s seemingly bright line rule into practice, it

seems incongruous that if one had two cars parked beside each other,

1912-30 (1997 &Supp. 1999).

126. 621N.E.2d 1069(Ind. 1993), modified on othergrounds by 644N.E.2d84(Ind. 1994).

1 27. Progressive Ins. Co. , 730 N.E.2d at 22 1

.

128. Id.

129. Id.

130. See id. at 221-22.

131. Mat 222.
132. Id.



878 INDIANA LAW REVIEW [Vol. 34:857

that he could recover for one and not the other.
133

In yet another pronouncement on the property damage issue, the court of
appeals in Hitachi Construction Machinery Co., v. AMAX Coal Co.™ joined
Interstate, I/N Tek, and Progressive in holding that the IPLA provides recovery
only for damage to property other than the defective product itself. 135 AMAX
purchased an excavator manufactured by Hitachi. One of Hitachi's authorized
dealers equipped the excavator with a custom-fitted fire suppression system

before delivery. The excavator sustained heavy damage from a fire when the fire
suppression system activated, but failed to extinguish the fire.

136

Both AMAX's and Hitachi's experts agreed that the fire began in the rear of
the excavator where the fan sprayed hydraulic fluid onto the hot engine
turbochargers. AMAX sued Hitachi, claiming that design defects in the
excavator caused the fire.

137
Hitachi tried mightily to dispose ofthe case before

trial. Hitachi first filed a motion to dismiss and later a motion for summary
judgment, both ofwhich the trial court denied. Hitachi then twice filed motions
forjudgment on the evidence during the jury trial. Hitachi appealed after ajury
verdict against it.

138

On appeal, Hitachi argued, as it had in the trial court, that AMAX could not
recover under the IPLA for a strictly economic loss to its excavator and that the
fire suppression system did not constitute "other property." The court ofappeals
agreed, reversing the trial court's decision not to dispose ofthe case to the extent

that AMAX's claims were based upon the IPLA. 139 As did the previous panels
deciding the issue, the Hitachi court began its analysis by examining Indiana
Code section 34-20-2-1, the IPLA's definition of "physical harm," and the case
lav/ definition of "sudden, major damage."

140
Citing Progressive and Martin

Rispens, the Hitachi court recognized that "a person may not recover for 'sudden,
major damage[,]' 'caused by a defective product unless the product also damages
other property or injures a person.'"

141
Citing both I/N Tek and Interstate, the

court reiterated that "other property" is that which is "wholly outside and apart

from the product itself and that the IPLA "does not use the terms 'product' and
'property' interchangeably [because it] 'contemplates the defective product

133. id.

134. 737 N.E.2d 460 (Ind. Ct. App. 2000).

135. See id. at 463-64.

136. See id. at 462.

1 37. See id. Specifically, AMAX argued that Hitachi's excavator was designed defectively
because of, "( 1 ) insufficient turbocharger shielding, (2) improper routing ofhydraulic lines, and (3)

failure to include a check valve on the fast fill line which allowed the fuel tank to feed the fire."

Id.

138. See id.

139. See id. at 462, 465-66.

1 40. Id. at 463. Compare Progressive Ins. Co. , 730 N.E.2d at 2 1 9-20, and Interstate Cold

Storage, Inc. v. Gen. Motors Corp., 720 N.E.2d 727, 730 (Ind. Ct. App. 1999).

141. Hitachi Constr. Mack Co., 737N.E.2d at 463.



200 1 ] PRODUCT LIABILITY 879

acting on some other property causing some harm to it.'"
142

After a brief analysis ofI/N Tek
m

and the U.S. Supreme Court's decision in
Saratoga Fishing Co. v. J.M. Martinac & Co., 144 the Hitachi court noted that
AMAX extensively negotiated with Hitachi's dealer for an excavator with a
custom-fitted fire suppression system and received a "bargained for" product

equipped with such a fire suppression system.
I4S

In addition, the fire suppression

system's very nature and manner of function revealed that it was an integrated
component of the excavator AMAX purchased. It was, therefore, "wholly
outside and apart from" the excavator itself.

146
Thus, according to the Hitachi

court, the excavator and the fire suppression system "constitute one bargained for

product, the damage to which is not recoverable under [the IPLA]."147

III. Defenses and Comparative Fault Issues

The IPLA includes specifically enumerated defenses to product liability
actions in Indiana.

148
Practitioners know those defenses as the incurred risk

defense,
149

the misuse defense,
150

and the modification or alteration defense.
151

A few of the cases decided during the survey period help to illustrate how
Indiana courts are applying some ofthose defenses.

1 42. Id. at 463-64 (quoting Interstate Cold Storage, Inc. , 720 N.E.2d at 730).

1 43

.

According to the Hitachi court, I/N Tek"squarely addressed whether * sudden and major'

damage to a product itself is sufficient to recover under the [IPLA].*' Id. at 464.

144. 520 U.S. 875(1997).

145. Hitachi Constr. Mack Co., 731 N.E.2d at 464. In doing so, the Hitachi court

analogized the fire suppression system to the vessel and hydraulic system received by the owner in

the Saratoga Fishing case. See id.

146. Mat 464.
147. Id. at 465. After making it clear that the IPLA and the Uniform Commercial Code

provide separate, alternative remedies, the Hitachi court determined that AMAX's failure to state
a valid claim under the IPLA did not necessarily preclude it from recovery under an implied

warranty theory. See id. at 465-66. Because, however, one of the trial court's pretrial orders

precluded warranty issues "from being fully litigated at trial," the court remanded the breach of

warranty count to the trial court for further proceedings. See id. at 465.

148. See Ind. CODE § 34-20-6-1 (1998).
149. "It is a defense to an action under [the IPLA] that the user or consumer bringing the

action: (1) knew of the defect; (2) was aware of the danger in the product; and (3) nevertheless

proceeded to make use of the product and was injured." Id. § 34-20-6-3.

1 50. "It is a defense to an action under [the IPLA] that a cause of the physical harm is a

misuse ofthe product by the claimant or any other person not reasonably expected by the seller at

the time the seller sold or otherwise conveyed the product to another party." Id. § 34-20-6-4.

151. "It is a defense to an action under [the IPLA] that a cause of the physical harm is a

modification or alteration of the product made by any person after the product's delivery to the

initial user or consumer if the modification or alteration is the proximate cause of physical harm

where the modification or alteration is not reasonably expectable to the seller." Id. § 34-20-6-5.



880 INDIANA LAW REVIEW [Vol. 34:857

In Smock Materials Handling Co. v. Kerr, l52 the Indiana Court of Appeals
affirmed ajury verdict in favor ofthe plaintiffagainst a scissors lift manufacturer

in the amount of$775,000.
153

Challenging the trial court's denial of its motions

for judgment on the evidence,
154

the manufacturer raised the following issues:

(1) whether a change in the lift design rendered it defective; (2) whether the
plaintiff incurred the risk of harm in using the lift; (3) whether the trial court
erred in denying the manufacturer's proposed jury instruction on the

sophisticated user doctrine; and (4) whether the trial court improperly used the

term "strict liability" in its jury instructions.
155

Turning first to the issue of incurred risk, Judge Baker, writing the opinion

in which Judge Garrard and Judge Sullivan joined, noted that the defense of
incurred risk operates under both strict liability and negligence theories.

156

"Incurred risk involves a mental state of venturousness on the part of the actor

and demands a subjective analysis into the actor's actual knowledge and
voluntary acceptance of the risk."

157
The Smock court noted that incurred risk

will bar a strict liability claim where the plaintiff had actual knowledge of the
specific risk and understood and appreciated the risk, but in a negligence action,

incurred risk will eliminate a plaintiffs recovery if the plaintiffs contributory

fault is greater than fifty percent.
158

The Smock court found no basis for the incurred risk defense. The court
pointed out that the plaintiff was unaware ofthe fact that the manufacturer had
changed the design ofthe lift by eliminating pins that would have prevented rods
from falling unexpectedly from the lift cups underneath the lift platform. The
court also recognized that the plaintiff followed the manufacturer's safety

instructions prior to positioning himself under the lift to inspect it.
159

The court then turned to the manufacturer's argument that the trial court
erred in refusing to deliver to the jury the sophisticated user instruction.

160 The
sophisticated user exception to the duty to warn in product liability applies when

152. 719 N.E.2d 396 (Ind. Ct. App. 1999).

153. Seeidzt399.

1 54. See Ind. Trial Rule 50(A).

155. See Smock, 719 N.E.2d at 399-400.

1 56. See id. at 402; see also IND. CODE § 34-20-6-3 (2000).

157. Smock, 719N.E.2d at 402 (citing Schooley v. Ingersoll Rand, Inc., 63 1 N.E.2d 932, 940

(Ind. Ct. App. 1994)).

158. See id.

1 59. See id. The evidence showed that the design was changed to eliminate the pins because

the manufacturer had problems with the pins shearing off. See id. at 400.

160. See id at 403. The manufacturer identified its proposedjury instruction as the "learned

intermediary" defense. Id at 404. As Judge Baker noted, the learned intermediary exception to a

defective warning claim has been limited to cases involving prescription drugs and medical devices,

and it is related to other defenses variously known as the sophisticated user or sophisticated

intermediary defenses. See id at 403 n.4. Following Judge Baker's lead, the authors also refer to

the defense as the sophisticated user defense. See id.



200 1 ] PRODUCT LIABILITY 88

1

the dangers posed by the product are already known to the user. 161 A
manufacturer's reliance upon an intermediary's or a user's knowledge ofdanger

is only reasonable "if the intermediary or the user knows or should know of the
product's dangers."

162 The reasonableness ofthe manufacturer's reliance upon
the intermediary's or user's sophistication depends upon the "product's nature,

complexity and associated dangers, the likelihood that the intermediary [or user]

will communicate warnings to the ultimate consumer, the dangers posed to the
ultimate consumer by an inadequate or non-existent warning, and the feasibility

of requiring the manufacturer to directly warn the product's ultimate

consumers."
163

The sophisticated user defense does not provide solace to a manufacturer of
a product with a latent design or manufacturing defect because it is essential that

intermediaries or users know or be in a position where they should know ofthe
risk ofdanger.

164 A manufacturer cannot delegate or otherwise avoid the duty to
warn ofa latent defect that becomes dangerous when a product malfunctioned or
was operated in an unexpected manner.

163

The manufacturer also argued that the trial court erred in refusing the
proposed instruction on the defense ofalteration or modification.

166
The defense

is only applicable in a product liability case ifthe modification or alteration is the

proximate cause ofphysical harm and the seller would not reasonably expect the

modification or alteration.
167

Moreover, the modification or alteration of the

product must be independent ofthe expected and intended use ofthe product.
168

Based on the facts of the Smock case, the court of appeals concluded that
there was no error in denying the requested alteration or modification jury
instruction. The manufacturer alleged the lift was altered or modified by the
plaintiff relocating a sensor on the machine. However, the manufacturer's

manual for the lift provided for adjustment of the sensor. The modification or
alteration therefore was foreseeable to the manufacturer and provided no basis
for the defense.

169

Finally, the manufacturer argued that the trial court erred in using the term

strict liability in its instructions to the jury.
170 The court of appeals determined

that the trial court's use of the term was acceptable because the term is
appropriate under Indiana law.

171
Although the court's finding on the use ofthe

161. See id. at 403.

162. Id.

163. Id

164. See id.

165. See id. (citing Hoffman v. E.W. Bliss Co., 448 N.E.2d 277, 286 (Ind. 1983)).

166. See IND. CODE § 34-20-6-5 (2000).

167. See id.

168. See id.

1 69. See Smock, 7 1 9 N.E.2d at 404.

170. See id. at 404-05.

171. See id. (citing IND. CODE § 34-20-2-3 (2000) ("[a] product liability action based on the

doctrine of strict liability in tort may not be commenced [against a seller of a product unless the



882 INDIANA LAW REVIEW [Vol. 34:857

term strict liability is relegated to a brief section at the end of the opinion, its
import may be more significant upon careful contemplation given the context of
the Smock decision and the recent revision ofthe IPLA. Under the IPLA, strict
liability remains a viable theory for recovery only in claims for manufacturing

defects.
172

Strict liability is no longer available to plaintiffs seeking recovery for
defective design or warning claims. Thus, the term "strict liability" is only
appropriate under Indiana law in manufacturing defect claims brought against the
manufacturer of the product or a domestic principal distributor of a foreign
manufacturer.

173

In November 2000, the court of appeals in Rogers v. Cosco, Inc.,m tackled
three issues that are important to Indiana product liability practitioners: federal

preemption; Indiana's state-of-the-art and governmental compliance rebuttable

presumption; and the quantum of evidence necessary to establish the existence
of a safer alternative product. This case involved Shelette Rogers' infant

daughter who was injured in a traffic accident. Rogers' daughter suffered two
cervical fractures that led to partial paralysis. At the time of the accident,
Rogers' daughter was restrained in a child booster seat manufactured by
defendant Cosco. The restraint seat did not extend to provide a separate support
for a child's back or head; rather, it utilized the vehicle's own upright seat
cushion for such a function. The restraint seat also employed a forward barrier,
called a shield, to restrain forward motion ofa child's upper torso in the event of

a collision.
175

Rogers' complaint alleged that Cosco violated its duty of reasonable care
when it designed, manufactured, distributed, and sold the booster seat for use by
children who weigh less than forty pounds. Rogers also contended that Cosco
violated its duty by not warning purchasers that there was no testing to
substantiate Cosco's claim that the seat could be used safely by children who
weigh between thirty and sixty pounds.

176

Cosco filed a motion for summary judgment on three grounds: (1) the
Federal National Traffic and Motor Vehicle Safety Act("Safety Act") preempted

Rogers' state law claims; (2) Rogers failed to set forth sufficient evidence to

overcome the rebuttable presumption in Indiana Code section 34-20-5- 1 ; and (3)
no safer alternative design existed, which must result in a finding that the seat's

design was not deficient. 177 The trial court granted summaryjudgment to Cosco,

seller is a manufacturer of the product]"); Marshall v. Clark Equip. Co., 680 N.E.2d 1102, 1 104

(Ind. Ct. App. 1997)).

1 72. See Ind. Code § 34-20-2-3 ( 1 998).

1 73. See IND. CODE § 34-20-2-4 (2000) (stating "[i]f a court is unable to hold jurisdiction

over a particular manufacturer of a product or part of a product alleged to be defective, then that

manufacturer's principal distributor or seller over whom a court may hold jurisdiction shall be

considered, for the purposes of this chapter, the manufacturer of the product").

1 74. 737 N.E.2d 1 1 58 (Ind. Ct. App. 2000).

175. See id. at 1162.

176. See id

177. See id. at 1162-63.



200 1 ] PRODUCT LIABILITY 883

and Rogers appealed.
178 The first of the three issues on appeal was federal

preemption. The court's handling of that issue is discussed later. 179 The latter
two issues are addressed here.

After determining that the Safety Act does not preempt Rogers' claims, the

court focused on whether Rogers' designated admissible evidence was sufficient
to rebut the IPLA's statutory state-of-the-art and governmental compliance
presumption, which provides as follows:

In a product liability action, there is a rebuttable presumption that

the product that caused the physical harm was not defective and that the
manufacturer or seller ofthe product was not negligent if, before the sale

by the manufacturer, the product:

(1) was in conformity with the generally recognized state ofthe art
applicable to the safety of the product at the time the product was
designed, manufactured, packaged, and labeled; or

(2) complied with applicable codes, standards, regulations, or

specifications established, adopted, promulgated, or approved by the

United States or Indiana.
180

178. See id. at 1163.

1 79. See infra notes 389-459 and accompanying text.

1 80. IND. CODE § 34-20-5-1 (2000). The Indiana Genera! Assembly enacted the rebuttable

presumption as section 5 of Public Law 278-1995, which initially was codified as Indiana Code

section 33-1-1.5-4.5 and later recodified as Indiana Code section 34-20-5-1. Before the 1995

amendments to the IPLA, practitioners and courts alike treated a product's conformity with the

state-of-the-art as a defense to the action and a product's compliance with applicable standards as

a factor to consider when determining whether a defendant's product was defective and

unreasonably dangerous and whether a defendant was negligent. However, with the enactment of

the 1995 amendments, a manufacturer or seller is now entitled to a rebuttable presumption that the

product at issue is not defective and that the manufacturer is not negligent if, before the

manufacturer's sale ofthe product, the product conformed to the generally recognized state-of-the-

art and/or with applicable standards. See id.

Historically, a defense based upon conformity with the state-of-the-art required proofofmore

than just compliance with industry custom and practice. See Montgomery Ward & Co. v. Gregg,
555 N.E.2d 1 1 45, 1 1 55-56 (Ind. Ct. App. 1 990). Before the 1 995 amendments to the IPLA, a panel

ofthe court ofappeals approved ofajury instruction defining state-of-the-art as follows: "The state

of the art with respect to a particular product refers to the generally recognized technological

environment at the time of its manufacture. This technological environment includes the scientific

knowledge, economic feasibility and the practicalities of implementation when the product was

manufactured." Weller v. Mack Trucks, Inc., 570 N.E.2d 1341, 1342 (Ind. Ct. App. 1991).

A defense theory based upon conformity with industry standards may now carry more weight
than it once did, so long as the standards have been adopted or approved by state or federal

government. In addition, defense practitioners may continue to defend cases by properly asserting

that industry standards and/or custom and practice, even ifnot formally adopted or approved at the



884 INDIANA LAW REVIEW [Vol. 34:857

According to the Rogers court, a showing that the seat met the requirements of
the Safety Act "made it incumbent upon Rogers to designate admissible evidence
to rebut the statutory presumption."

18
' Rogers designated certain portions of

depositions and articles in support ofher claim that there was a genuine issue of
material fact as to whether Cosco met either the requirements ofthe Safety Act
or the state-of-the-art- According to Rogers, Cosco '"failed to perform failure
mode and effect safety engineering analysis of its child safety seat, which would
have been reasonably necessary to make [the] recommendation 9 [required by the
Safety Act] as to the maximum mass and height of children 'who can safely
occupy the system.'"

182

However, the trial court did not specifically address whether Rogers had
designated evidence sufficient to rebut the presumption that federal compliance

proves that the seat is not defective and that Cosco is not negligent because it
granted summary judgment on the basis of federal preemption. By the same
token, the trial court did not specifically address whether there was sufficient
designated evidence to establish that the seat conformed to the generally

recognized state-of-the-art or whether Rogers had designated evidence sufficient

to rebut the presumption that a state-of-the-art product is not defective and that

Cosco is not negligent in producing and selling a state-of-the-art product. Thus,
because the "crucial question of whether Rogers met her burden rests upon the
issue of whether her designated evidence met the designation requirements of
Indiana Trial Rule 56," the court remanded with instructions that the trial court

rule upon Cosco's objection to the admissibility of Rogers' designated

evidence.
183

time ofmanufacture, truly embodied the appropriate and applicable state-of-the-art. Furthermore,

an Indiana product liability plaintiff, before 1995, could effectively counter a state-of-the-art

defense by proving that the state-of-the-art of a product, as defined by a defendant, was not the

actual state-of-the-art. Now, in light ofthe IPLA's adoption ofnegligence principles in design and

warning cases, defendants may be entitled to argue that Indiana law requires plaintiffs to show that

the manufacturer's perceived definition of state-of-the-art is incorrect and that the manufacturer's

reliance on its perceived state-of-the-art and failure to design and sell a product that exceeded any

applicable standards at the time of manufacture was unreasonable.

181. Rogers, 111 N.E.2d at 1 166-67.

182. Mat 1166.
183. Id. at 1 167. The court of appeals in Indianapolis Athletic Club, Inc. v. Alco Standard

Corp., 709N.E.2d 1070 (Ind. Ct. App.1999), addressed a state-of-the-art jury instruction. There,

the plaintiff argued that giving a state-of-the-art instruction is inconsistent with a claim that a

manufacturing defect caused physical harm, which is a strict liability claim. The IAC court

concluded that the state-of-the-art defense applied to plaintiffs manufacturing defect claim, and

was not restricted to design defect theories. See id. at 1074-75.

As stated in last year's product liability survey Article:

Although the IPLA now provides that "state of the art" is no longer a "defense" in
product liability cases, the Indianapolis Athletic Club opinion should nevertheless be

helpful for practitioners who are searching for some explanation about what "state of



200 1 ] PRODUCT LIABILITY 885

With respect to the "safer alternative" issue, Cosco argued that Rogers'
crashworthiness claim hinged on the existence ofknown neck loading tolerances
for young children. Cosco also argued that proof of the existence of a safer
alternative (a five-point convertible seat with tether that would have limited
accident-related neck loading forces) also hinges on the existence of data
pertaining to tolerances. According to Cosco, it is impossible to show the
existence of a safer alternative because at the time the seat was manufactured
there was no meaningful data showing the neck loading tolerances of small
children.

184

The evidence Cosco designated, which included portions of depositions of
Rogers' experts, revealed to the court that there was "no scientific basis upon
which to determine the existence of a safer alternative child restraint."

185

According to the court, such evidence,

coupled with designated evidence that [Cosco's seat] was ofa sufficient
design to meet the federal requirements which allowed it to be sold for

use by children under forty pounds, is prima facie evidence that there is
no genuine issue of material fact as to whether a safer alternative child

restraint system is in existence.
186

Accordingly, the court concluded that the summary judgment burden passed to
Rogers to establish that a genuine issue of material fact exists.

187

Following a discussion ofRule 702 ofthe Indiana Rules ofEvidence and the

court's evidentiary gatekeeper function with respect to expert witnesses, the

Rogers court recognized that it could not make a definitive determination on
appeal because the trial court did not rule on Cosco's motion to strike the

portions ofthe expert depositions discussed above:

the art" means. After all, the court found that the instruction at issue correctly stated the

law. Practitioners also may read Indianapolis Athletic Club as confirmation that the

"state of the art" presumption should apply in product liability regardless whether the

underlying theories sound in strict liability (manufacturing defects) or negligence

(design and warning defects).

Joseph R. Alberts, Survey ofRecent Developments in Indiana Product Liability Law, 33 Ind. L.

Rev. 1331, 1348 (2000) (footnotes omitted).

1 84. See Rogers, 737 N.E.2d at 1 1 67.

185. Id

186. Id

1 87. See id. The court did, however, initially recognize that if the case had been pending in

federal court, Cosco would be entitled to summary judgment upon showing that Rogers failed to

make a showing ofan essential element ofher crashworthiness claim. Rogers' failure "to designate

admissible evidence to establish the presence of a safer alternative" to the seat manufactured by

Cosco would entitle Cosco to summaryjudgment. Id. In Indiana, however, because ofthe different

summary judgment standard for state court cases established by Jarboe v. Landmark Community

Newspapers, 644 N.E.2d 118, 123 (Ind. 1994), "Rogers is not required to establish the presence

of a safer alternative until Cosco shows the absence of any genuine issue ofmaterial fact as to that

presence." Rogers, 737 N.E.2d at 1 167.



886 INDIANA LAW REVIEW [Vol. 34:857

The question ofwhetherthe disputed portions of[the purported experts']
statements are admissible has a direct bearing on whether the
presumptions set forth in Ind. Code § 34-20-5-1 have been rebutted and
whether there is a genuine issue of material fact on the "safer
alternative" element of Rogers's crashworthiness claim. The trial
court's failure to rule on the admissibility ofthe evidence requires us to
remand to the trial court for such proceedings as may be necessary to
determine whether the statements of [the purported experts] meet the
requirements of Evid.R. 702.

188

The remaining survey period case important to practitioners is Chapman v.
Maytag.

,89
Although Chapman is a federal decision that Magistrate Judge Foster

circulated for electronic publication only, it is one about which practitioners

should be aware because it contains a wealth of material for discussion in the

context of product liability defenses. In this case, Kyle Chapman was
electrocuted when he came into contact with ductwork in the crawl space of a
home in which family members were sustaining minor electrical shocks. The
special representative ofChapman's estate sued Maytag, the manufacturer of a
stove that allegedly contained a defective wire. According to the plaintiff, the

stove contained a wire that had become pinched between a metal housing cover
and the metal back of the stove during the assembly process.

190

During the course ofpretrial proceedings, the court ruled upon a motion for
summary judgment, and, in doing so, made the following assumption for
purposes of resolving the motion:

[A] manufacturer may defend on the basis ofan adequate warning even
if an injury results from a defect or dangerous condition which was
unanticipated and against which the warning was not intended to protect
but against which compliance with the warning would have protected.

Therefore, if Maytag's warnings were adequate, it may assert those
warnings as a defense even against manufacturing defects.

191

As the case neared trial, the court revisited its earlier assumption in the context
of the parties' proposed final jury instructions and other trial filings.

192 The
electronically published opinion is the court's second pretrial order, which

addresses that and other related issues.

The court began its discussion of relevant issues by reciting some common
ground. In its summary judgment order, the court determined that Maytag had

188. Mat 1169.
189. No. IP999-39-C-FID, 2000 U.S. Dist. LEXIS 10502, at *1 (S.D. Ind. July 27, 2000).

190. See id. at *2. The parties did not dispute that the stove was the source of the fatal

current. See id. at *2 -*3.

191. Id at*l.

1 92. See id. The court "made the assumption at the time [of its summary judgment ruling]

because neither party had raised or briefed the question directly as an issue in this case and the

assumption allowed the summary judgment rulings to be made." Id.



200 1 ] PRODUCT LIABILITY 887

a duty to warn Chapman ofthe risk of shock from ungrounded installations and
to instruct him to use a grounded receptacle.

193
Although Maytag supplied

warnings and instructions with the stove regarding the need to use a grounded

receptacle, Chapman did not do so. Beyond that matter, however, the parties'
"descriptions of the posture of, and the burdens in, th[e] case diverge[d]."

194

Chapman's representative argued that because she was asserting only a
manufacturing defect theory and not a failure to warn theory, evidence regarding

the adequacy of Maytag's warning should relate only to the assessment of

comparative fault under Indiana Code section 34-20-8- 1 . Maytag countered that
ifthejury found its warnings and instructions adequately warned and instructed

Chapman to use a grounded plug, then, as a matter of law, the stove was not in
a defective condition unreasonably dangerous to Chapman, and Maytag could not
be held liable.

195
In other words, Maytag contended that its adequate warnings

rendered the stove non-defective or not unreasonably dangerous and Chapman's
failure to heed those warnings constituted misuse, which, under Indiana Code
section 34-20-6-4 is a complete defense.

196

The Chapman court first concluded that the defense of misuse provided in
Indiana Code section 34-20-6-4 is not a complete defense. Rather, according to
Magistrate Foster, it shall be compared with all other fault in the case. In doing

so, the court first cited Indiana Code section 34-20-8-1, which reads:

(a) In a product liability action, the fault ofthe person suffering the

physical harm, as well as the fault of all others who caused or
contributed to cause the harm, shall be compared by the trier of fact in
accordance with IC 34-51-2-7, IC 34-51-2-8, or IC 34-51-2-9 [sections

of the comparative fault act].

(b) In assessing percentage offault, thejury shall consider the fault

of all persons who contributed to the physical harm, regardless of
whether the person was or could have been named as a party, as long as
the nonparty was alleged to have caused or contributed to cause the
physical harm.

197

The court also recognized that, for purposes ofthe IPLA, the legislature defined
"fault" to mean:

an act or omission that is negligent, willful, wanton, reckless, or

intentional toward the person or property of others. The term includes

193. See id. at *3-*4. The court so determined because it found that "there is a significant

potential for short circuits not caused by manufacturing or design defects to energize Maytag's

stoves, thereby becoming unreasonably dangerous to its expected users or consumers when used

in reasonably expectable ways of handling." Id.

194. Idat*4.

1 95. See id. According to the court, Maytag's position was "more difficult to discern and at

times seemjedj inconsistent." Id. at *5.

196. See id. at *5 n.2.

1 97. Ind. Code § 34-20-8-1 (Supp. 1 999).



888 INDIANA LAW REVIEW [Vol. 34:857

the following:

(1) Unreasonable failure to avoid an injury or to mitigate damages.

(2) A finding under IC 34-20-2 . . . that a person is subject to liability
for physical harm caused by a product, notwithstanding the lack of
negligence or willful, wanton, or reckless conduct by the manufacturer
or seller.

198

By specifically directing that thejury compare all fault in a case, Magistrate
Foster concluded that the General Assembly intended that the defense, or fault,
of misuse be compared as well.

It might be argued that, because the definition of "misuse" considers

only the objective reasonableness ofthe foreseeability ofthe misuse and

not the character of the misuser's conduct, misuse is not "fault."

However, the legislature did not indicate that it intended to exempt
misuse from the scope of the comparative fault requirement and a
plaintiffs (mis)use does fall within the statute's definition of fault as an

"act . . . that is . . . intentional toward the . . . property of others,"

regardless of the reasonableness ofthe act.
199

Magistrate Foster also concluded that the cases on which Maytag relied for its
contention that misuse is a complete defense "each involve incidents that

occurred before comparative fault was added to the product liability statute and
thus were decided under contributory negligence principles."

200

After finding that the defense ofmisuse is not a complete one, the Chapman
court next "conclude[d] that Maytag's warnings did not prevent its stove from

being defective and Mr. Chapman's failure to comply with those warnings (if
adequate) did not constitute misuse."

201 On that point, Magistrate Foster wrote:

Although we have found no Indiana cases on point, we conclude that
adequate warnings will not render a product with a manufacturing defect

non-defective, even ifa duty to warn exists because of inherent dangers
in a product and compliance with the warnings would have prevented the
alleged injury. Ourreview ofIndiana law persuades us that warnings are
required and will save a product from being deemed "defective" only
when a product is without manufacturing or design defects but
nonetheless presents residual or inherent hazards that render it

unreasonably dangerous. We believe that an Indiana court would follow
a policy that emphasizes deterring and compensating injuries resulting

from manufacturing defects (the last vestige ofstrict product liability in

198. Chapman, 2000 U.S. Dist. LEXIS at *6-*7 (citing Ind. CODE § 34-6-2-45(a) (1998)).

1 99. Id. at * 7-* 8 (internal citation omitted).

200. Id. at *8 -*9.

20 1

.

Id. at * 9. In doing so, the court recognized the three ways a product could be determined

to be in a defective condition in Indiana: (1) manufacturing defect; (2) design defect; or (3)

warning defect (the manufacturer could have failed to warn or could have inadequately warned of

the product's dangers). See id. at *9-* 10.



200 1 ] PRODUCT LIABILITY 889

the state) over providing a warnings defense to manufacturers.

. . . Maytag concedes that the pinched wire was a manufacturing
defect in the product. Therefore, although Maytag had a duty to provide
grounding warnings because ofthe risk ofdefect-free short-circuits and

compliance with adequate grounding warnings might have prevented Mr.

Chapman's death, adequate warnings will not render Maytag's stove non-
defective or not unreasonably dangerous under I.C. §§ 34-20-2- 1 , 34-20-

4-1, or 34-20-4-3

.

202

Finally, the court concluded that Chapman's failure to heed Maytag's
warnings, even ifassumed to be adequate, would not constitute misuse pursuant

to Indiana Code section 34-20-6-4. The Chapman court believed that an Indiana
court would interpret the statute and make the policy decision to not allow
Maytag to assert the defense of misuse on the basis of Chapman's failure to
comply with its warnings.203

If the plaintiff establishes that the stove with this pinched wire was in a
condition not contemplated by reasonable persons among those
considered expected users or consumers of the stove and that was
unreasonably dangerous to the expected user or consumer when used in
reasonably expectable ways of handling or consumption, then Maytag
will be strictly liable for the stove's defective condition and the plaintiff

need not prove Maytag's negligence.
204

Thus, Magistrate Foster concluded that

Maytag may not assert, prove, or argue that its warnings or Mr.
Chapman's failure to comply therewith rendered the stove non-defective
or constituted misuse. It may assert, prove, or argue, however, that his
failure to heed its warnings constitutes fault that the jury must compare

and apportion along with Maytag's own.205

The Chapman case raises interesting points for debate in connection with the
misuse defense and its application. Indeed, the IPLA tort reform amendments of
1995 present some potentially confusing issues involving the allocation of fault
among responsible parties in a product liability action. Indiana Pattern Jury
Instruction 7.04(B), for example, sets forth the statutory defenses available in

Indiana in product liability cases. The official comment to Instruction 7.04(B)
states that it may be less confusing to substitute Instruction No. 5.61 (incurred
risk) to avoid separate defense instructions in trials that involve strict liability and

other negligence issues. The official comment also recognizes parenthetically
that a comparative fault analysis applies to claims based upon Indiana Code
section 34-20-2. These comments could lead to some confusion and certainly

202. Id. at * 1 0-* 1 2 (internal citations omitted).

203. See id. at*12.

204. A* at* 14.

205. Id.



890 INDIANA LAW REVIEW [Vol. 34:857

have fueled discussion. Indeed, in the years since 1995, some practitioners have
been heard to make the blanket assertion that all comparative fault principles now
apply 'lock, stock, and barrel" to product liability cases. Several sources suggest

that this is not, nor should it be, the case.

As the Chapman court recognized, there is an issue aboutwhetherthe IPLA's
enumerated defenses remain complete defenses in Indiana after 1995. Misuse,
alteration/modification, incurred risk, and conformance with state-of-the-art were
complete defenses to IPLA claims before the 1995 amendments because they
served to relieve a defendant of liability, if the defendant were able to plead and
prove any one of them.

206
In light of the introduction of fault allocation

principles into product liability cases in Indiana in 1995, some creative and
persuasive counsel have argued that misuse, alteration/modification, and incurred
risk are simply arguments that affect the level or percentage offault to be placed

upon a particular claimant under the allocation. Indeed, that was the argument
in Chapman.

Although its discussion focused upon the misuse defense, the Chapman court
certainly was careful to point out that incurred risk likely remains a complete
defense. In that connection, there are some considerations about which courts
and practitioners might want to be sensitive when addressing whether incurred
risk is a complete defense in future cases. First, it is important to understand that

the General Assembly amended IndianaCode section 34-20-6-3, the incurred risk
defense, to eliminate the word "unreasonably" from the phrase that previously
read "nevertheless proceeded 'unreasonably' to make use ofthe product."207 The
language used is significant because it lends support for the proposition that

incurred risk is not subject to fault apportionment.
208

In addition, the definition of fault for purposes of Indiana's Comparative

Fault Act,
209

includes incurred risk, whereas the definition of fault for purposes

ofthe IPLA does not.210 It is the Comparative Fault Act's specific incorporation
ofincurred risk within its definition offault that enables a trier offact to allocate

fault to a plaintiff for incurring the risk. In stark contrast, the IPLA does not
include incurred risk within the definition offault quoted by the Chapman court,
Indiana Code section 34-6-2-45(a). While it is clear that the General Assembly

206. See, e.g., Estrada v. Schmutz Mfg. Co., 734 F.2d 1218 (7th Cir. 1984) (finding

nonforeseeable misuse is a complete defense to product liability claim); Foley v. Case Corp., 884

F. Supp. 313 (S.D. Ind. 1994) (holding modification or alteration is a complete defense to certain

product liability actions); Perdue Farms, Inc. v. Pryor, 646 N.E.2d 715 (Ind. Ct. App. 1995)

(holding incurred risk is a complete defense to strict product liability claims).

207. Ind. Code § 34-20-6-3(3) (1998).

208. See Timothy C. Caress, Recent Developments in the Indiana Law ofProducts Liability,

29 IND. L. Rev. 979, 1000 (1996),

209. Ind. Code §34-51-2.

210. See id. § 34-6-2-45. In addition to "incurred risk," "fault" for purposes of the

Comparative Fault Act includes "unreasonable assumption of risk not constituting an enforceable

express consent" and "unreasonable failure to avoid an injury or to mitigate damages." Id. § 34-6-

2-45(b).



200 1 ] PRODUCT LIABILITY 89

1

was aware ofthe Comparative Fault Act's definition of fault, it appears to have
borrowed selectively from that definition. The references to assumption of risk
and incurred risk that are contained in the Comparative Fault Act definition of

fault are conspicuously absent from the IPLA fault definition.
On this point, at least one Indiana appellate decision may provide support for

the proposition that incurred risk remains a complete defense in Indiana. In

Hopper v. Carey,211 the court ofappeals recognized that IPLA claims are subject
to specifically enumerated defenses, including the incurred risk defense

embodied in Indiana Code section 34-20-6-3. The Hopper court pointed out that
"even if a product is sold in a defective condition [is] unreasonably dangerous,
recovery will be denied an injured plaintiff who had actual knowledge and
appreciation of the specific danger and voluntarily accepted [incurred] the

risk.'"
212 The court makes no mention of comparing fault if there is a

determination that the plaintiffhad actual knowledge and appreciated the specific

danger involved.

Beyond the incurred risk context, it does not seem insignificant that the
General Assembly chose to eliminate the language limiting application of the
traditionally complete defenses only to actions involving "strict liability in tort."

Now, the defenses apply to all actions brought under the IPLA, and, therefore,
all defective product cases in this state accruing after June 30, 1 995. In addition,

and as Magistrate Foster adeptly recognized in Chapman, the definition of
misuse considers only the objective reasonableness of the foreseeability of the

misuse and not the character of the misuser's conduct. Accordingly, there is a

credible argument that misuse is not fault. That the General Assembly did not
overtly indicate that it intended to exempt misuse from the scope of the
comparative fault requirement does not necessarily mean that it is exempted.
After all, it would seem more likely that the legislature's silence on the matter
would indicate at least an implicit recognition that the complete nature ofthe pre-
1995 product liability defenses was to remain that way notwithstanding the
introduction of some comparative fault principles vis-a-vis defendants and non-
parties. Thus it appears a debatable issue whether it is appropriate to utilize a

traditional comparative fault instruction in a case in which the applicability ofa

misuse and alteration/modification defense may be an issue.

IV. Expert Witness Evidentiary Issues

With its landmark decision of Daubert v. Merrell Dow Pharmaceuticals,
Inc.,

213
the U.S. Supreme Court altered and clarified the approach for qualifying

and admitting into evidence expert testimony under the Federal Rules of

Evidence.
214 More recently, the Supreme Court provided further guidance on the

211. 716 N.E.2d 566 (Ind. Ct. App. 1999).

212. Id at 576 (quoting Koske v. Townsend Eng'g Co., 551 N.E.2d 437, 441 (Ind. 1990)

(emphasis added)).

213. 509 U.S. 579(1993).

2 1 4. See FED. R. EviD. 702.



892 INDIANA LAW REVIEW [Vol. 34:857

trial court's task in considering whether proffered expert testimony should be
brought before the jury in Kumho Tire Co. v. Carmichael.215 During the survey
period, both the Seventh Circuit and the U.S. District Courts for the Northern and
Southern Districts of Indiana revisited these issues.

In the case of Minisan v. Danek Medical, Inc.,216 the plaintiff brought a
medical device product liability action against the manufacturer of a spinal
fixation device.

217
The plaintiff was a patient who underwent spinal fusion

surgery to alleviate pain in her back. As part ofthe spine fusion surgery, a device
was implanted on her spine and affixed to the pedicles of her vertebrae for the
purpose of immobilizing that area of her back to promote the bone grafts that
would complete the spine fusion. The device was affixed to her spine by screws.
When her pain recurred, it was discovered that the screws had broken, and a
second surgery was done with a device again being affixed to her spine with
screws. However, the screws anchoring the second implant also broke.

218 The
patient claimed that the manufacturer of the implant device "was negligent in
designing, manufacturing, promoting and providing warnings about the device,

and that the negligence proximately caused her continued pain and injury."219

The device manufacturer sought summaryjudgmenton the plaintiffs claims,
arguing that the plaintiffcould not establish with expert testimony that the device

or its alleged failure caused her injury.
220 The manufacturer also sought summary

judgment on the grounds that the plaintiff could not establish that the product
was defective and that the plaintiffs failure to warn claim was precluded by the
learned intermediary doctrine.

221 The U.S. District Court focused its analysis on
the qualifications of the plaintiffs expert testimony.

222

215. 526 U.S. 137(1999).

216. 79 F. Supp. 2d 970 (N.D. Ind. 1999).

217. See id. at 971. This case had been transferred pursuant to 28 U.S.C. § 1407 by the

Judicial Panel on Multi-district Litigation to the U.S. District Court for the Eastern District of

Pennsylvania, for consolidated proceedings as one of more than two thousand products liability

actions filed by plaintiffs claiming injuries from defective "pedicle screw fixation devices" that were

surgically attached to the pedicles of the spines during spine fusion surgery. Id. The case was

remanded to the Northern District of Indiana after the pre-trial proceedings were sufficiently

completed, primarily with only case and fact specific issues remaining. See id.

218. See id at 973-74.

219. Id at 974.

220. See id.

221. See id.

222. The plaintiff did not file a brief in response to the manufacturer's motion for summary

judgment. See id. at 971 . The district court discussed and rejected the plaintiffs position with

regard to her claim that the product was defective and that the manufacturer failed to warn the

plaintiff in a relatively perfunctory fashion. Noting prior decisions in similar cases holding that the

mere fact that a screw broke shortly after implantation did not itself evidence a defect, the court

found that the plaintiffs claim of defect failed because "she made no attempt to rule out any other

cause for her pain and the alleged injury." Id. at 977. The court also noted that the mere failure of

a device standing alone will not render a manufacturer liable, and that it is "a known fact in the



200 1 ] PRODUCT LIABILITY 893

Particularly in medical device product liability cases, proofoflegal causation

must be presented by expert testimony, "and the expert's opinion must be stated
in terms of reasonable probability."

223 The expert's degree of certainty is
irrelevant if the opinion is unsupported.

224 The expert testimony's proponent
must show by a preponderance ofthe evidence that the expert witness is qualified
to provide the opinion.

225

However, after surpassing the first qualification hurdle, the proponent of

expert testimony must show that, in addition to the expert having sufficient
knowledge and training, the expert's testimony is reliable.

226 An expert cannot
offer merely conclusory opinions, should address other factors that may have
caused the alleged damages, and must provide an explanation as to how or why
the expert arrived at his conclusions.

227 The expert must provide the trial court
with a sufficient explanation and understanding ofhow the expert developed his
conclusions or opinions so that the court can evaluate the reliability of the

testimony.

In this respect, the proffered expert in the Minisan case failed to pass muster.

Although the expert physician certainly was qualified—an Osteopath with board
certification in orthopedic surgery and pain management and training in spine
surgery—his expert conclusions were based solely on an examination of the
plaintiffs medical records. The physician never examined the plaintiff, met with
her or even spoke with her. The physician never examined or tested the medical
device in question, finally, the physician failed to provide any explanation as to

how he reached his conclusions. The trial judge found the expert's testimony
unreliable.

228

The trial court judge acts as the gatekeeper to ensure that expert testimony

and evidence "is not only relevant, but reliable."
229

In the decision of Owens v.

medical community that bone screws may break due to a numberoffactors unrelated to any defect."

Id. The court also discussed the requirement that the defective product must be "unreasonably

dangerous." See id. Noting prior case law in which the court held that use of a medical device in

a manner not approved by the FDA does not mean that the device is defective, the court found no
evidence ofa defect in the physician's "off label" application ofthe implant device. See id. at 978.

The court finally rejected the plaintiffs failure to warn claim, noting that "manufacturers of

prescription medical products have a duty only to warn physicians, rather than patients, ofthe risks

associated with the use of the product." Id. Furthermore, the court noted that, "even if the

manufacturer failed to warn or advise the physician, the manufacturer would not be liable if the

plaintiffs physician independently knew of the risks and failed to advise the plaintiff." Id. The

plaintiff failed to produce any evidence supporting this allegation. See id. at 979.

223. Id. at 975.

224. See id.

225. See id.

226. See id. at 976.

227. See id.

228. See id.

229. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).



894 INDIANA LAW REVIEW [Vol. 34:857

Amtrol, Inc.,
230

Judge Miller discussed the trial court's role in assessing the

reliability ofexpert testimony. "This inquiry focuses, not only [on] the witness's
qualifications as an expert in the field, but rather on the methodology the expert
used to reach the proffered opinion."

231 The expert must substantiate the basis
of his opinion to the trial court.

232

The trial court's inquiry into the reliability of an expert's testimony is "a
flexible one," designed to assure that the expert employs in the courtroom the

same level of "intellectual rigor" practiced in the field.233 Although there is no
defined standard under which the trial court is to assess the reliability of an
expert's testimony, among the factors the court may consider is "(

1
) whether the

theory or technique can be and has been tested; (2) whether the theory or

technique has been subject to peer review and publication; (3) whether the theory

or technique has a known or potential rate oferror; and (4) whether the theory or
technique is generally accepted."

234
Speculative testimony, even offered by an

expert of the highest credentials, is inadmissible.
235

In the Owens case, the estate ofa deceased pressure tank technician brought
an action against the tank's manufacturer for damages incurred when a pressure
tank that the deceased was repairing exploded, causing his death.236 The plaintiff
engaged a qualified expert to inspect the tank and offer an opinion on defective

design or manufacture.
237 The plaintiffs expert viewed the tank after the

explosion and compared it to similar tanks and to alternatively designed tanks.

The expert noted that similar tanks with different weldings did not show the
corrosion around the base that the manufacturer's tank did, and that other tanks

manufactured by the defendant showed the same indications ofrust. The expert
then opined that the tank suffered of defective manufacture, resulting in the

development ofrust that "'reduced the wall thickness [of the tank] to practically

nothing,'" and was also defectively attached to its base cylinder.238

However, the expert provided nothing to the trial court explaining how he
reached his conclusions, and the trial court agreed with the manufacturer that the

230. 94 F. Supp. 2d 952 (N.D. Ind. 2000).

231. Id. at 955 (citing Clark v. Takata Corp., 192 F.3d 750, 756 (7th Cir. 1999)).

232. See id.

233. Id (quoting Kumho Tire Co. v. Carmichaei, 526 U.S. 137, 152 (1999)).
234. Id. (quoting United States v. Vitek Supply Corp., 144 F,3d 476, 484-85 (7th Cir. 1998),

cert, denied, 525 U.S. 1 138 (1999)).

235. See id

236. See id. at 954.

237. See id. The plaintiffs expert was experienced in the design of pressure vessels, held a

Bachelor's degree in mechanical engineering, worked as an instructor in a university engineering

department, and had extensive employment in the field ofapplied engineering. See id. at 955. The

manufacturer challenged the qualifications ofthe plaintiffs expert, arguing that the expert had no

experience with water pressure vessels. This was summarily rejected by the trial court, which noted

that the manufacturer offered nothing to indicate that experience with pressure vessels is different

from that with water vessels. See id.

238. Id. at 956.



200 1 ] PRODUCT LIABILITY 895

expert's opinion was merely observational without analysis.239 The court noted
that, while reliable engineering principles may exist that would support the
expert's reasoning, no such principles or other foundation providing the basis of
the expert's conclusions were provided to the court.

240 The court "must evaluate
the reliability of the bridge the expert takes to an opinion, not the opinion

itself."
241 The court went on to assert that "[c]ertainly, when the asserted cause

of the patient's condition is a phenomenon that requires specialized scientific
knowledge, 'an insightful, even an inspired, hunch' will not suffice."

242
Since the

plaintiff offered no explanation ofhow the expert went from his observations to
his conclusions, the court rejected his testimony as unreliable.

Practitioners preparing for summary judgment or trial in matters that
inherently require the assistance of expert opinion testimony must work with
caution to assure not only that the expert is qualified to provide the propounded

testimony and that the expert's opinion is founded upon sound principles under
the guidelines of Daubert and Kuhmo Tire Co., but also that the expert's
methodology for deriving an opinion and the substantial basis for that opinion is
made part of the record and brought before the trial court for consideration.

In the decision ofSmith v. FordMotor Co. ,
243

the Seventh Circuit considered

the exclusion of the testimony of two expert witnesses offered on the issue of
whether a steering gear box in a vehicle was defectively designed or
manufactured. The U.S. District Court for the Southern District ofIndiana ruled
on the day of trial that the plaintiffs two expert witnesses could not testify as

proposed and then dismissed the action with prejudice because the plaintiff had

no other expert witnesses to substantiate his claim. The court excluded the
witness' testimony on the basis that the experts were not qualified to testify and
that their testimony would not be helpful to the jury.

244

The Seventh Circuit noted that an expert may be qualified by "knowledge,
skill, experience, training or education."

245
Rule 702 of the Federal Rules of

Evidence contemplates the admission oftestimony by experts whose knowledge
is based on experience, as well as those who gain their qualifications through
"academic and practical expertise."

246 The court considers the "full range of [an
expert's] practical experience as well as his or her academic or technical training

when determining whether an expert is qualified to render an opinion in a given
area."

247

239. See id. The court noted that "[h]ands-on testing and review ofexperimental, statistical,

or other scientific data gathered by others are examples of reasonable methodologies upon which

opinion may reliably rest." Id. at 955.

240. See id. at 956.

241. Id.

242. Id (quoting Cooper v. Carl A. Nelson & Co., 21 1 F.3d 1008, 1020 (7th Cir. 2000)).
243. 215 F.3d 713 (7th Cir. 2000).

244. See id. at 111.

245. Id at 71 8 (quoting FED. R. EVID. 702).

246. Id. (quoting Bryant v. City of Chicago, 200 F.3d 1092, 1098 (7th Cir. 2000)).

247. Id.



896 INDIANA LAW REVIEW [Vol. 34:857

The plaintiff in Smith alleged that the steering gear box failed due to a defect,
causing him to be unable to gain control of his vehicle, resulting in a single
vehicle collision from which he sustained injuries.

248 To support his position, the
plaintiff presented two expert witnesses: a mechanical engineer, who had
previously worked for General Motors performing accident reconstruction
analysis, and a metallurgical engineer, who worked for General Motors for an
extended period of time before leaving to form his own engineering firm.249

The mechanical engineer examined the plaintiffs vehicle twice and based
upon his analysis, determined "that there was an internal failure in the steering
gearbox, that the failure occurred while the vehicle was in use before it left the
road," and that the failure was due to a defect in the parts inside the gearbox,
although he was unable to determine whether the defect was due to the design or
the manufacture ofthe affected parts.

250 The metallurgical engineer removed and
opened the gearbox in the presence of the manufacturer's technician, inspected

the mechanisms inside the gearbox, and "determined that the steering had failed
due to the overloading of the torsion bar and that the specific parts were

manufactured according to the manufacturer's specifications."
251

Like the

mechanical engineer, however, he was unable to determine whether the defect
was due to design or manufacture. He offered several hypothetical explanations
for the failure and stated that, in his opinion, using a different metal for the

torsion bar would have been a better choice.
252

The manufacturer argued, and the district court agreed, that plaintiffs two
experts were not qualified to rendertheir proffered opinions because neitherwere

qualified as automotive engineers.
253

Although the Seventh Circuit concurred

that neither ofplaintiffs experts were qualified as automotive engineers, it noted

that plaintiff did not seek to qualify either as an expert in automotive design or

manufacture.
254 The court explained that "experttestimony need only be relevant

to evaluating a factual matter in the case [and] need not relate directly to the

ultimate issue that is to be resolved by the trier of fact."
255 The Seventh Circuit

held that the trial court "erred in concluding that [the two experts] were not
qualified as experts in a relevant field solely because their expertise related to an

area other than the one concerning the ultimate issue" in the case.
256

248. See id. at 7 1 6. The plaintiff fell asleep while driving his vehicle, causing his vehicle to

cross over the grassy median and opposing travel lanes, at which time the plaintiff awakened and

attempted to steer the vehicle back to the proper side ofthe road. The plaintiff contended that the

steering mechanism then failed due to the defect and he was unable to steer the vehicle, causing his

vehicle to exit the traveling surface and strike a concrete culvert. See id.

249. See id.

250. Id

251. Id. at 716-17.

252. See id. at 717.

253. See id. at 719-20.

254. See id. at 720.

255. Id.

256. Id.



200 1
]

PRODUCT LIABILITY 897

The appellate court then addressed the district court's finding that the
testimony ofthe two expert witnesses was unreliable because its contents had not
been "peer reviewed."

257 The court noted that "no single factor among the
traditional Daubert list is conclusive in determining whether the methodology

relied upon by a proposed expert is reliable."
258 The Seventh Circuit noted that

the reliability test under Federal Rules of Evidence Rule 702 is individualized

and dependent upon the type of expertise at issue in a given case.
259 The court

went so far as to opine that the "lack of peer review will rarely, if ever, be the
single dispositive factor that determines the reliability of expert testimony."

260

The Seventh Circuit then turned to the district court's conclusion that the
testimony of the two experts would not be helpful to the jury.

261 The appellate
court found that the district court's reasoning requires a scope ofrelevancy more
narrow than that contemplated under the Federal Rules of Evidence. "In order

for an expert's testimony to qualify as 'relevant' under Rule 702 it must assist the

jury in determining any fact at issue in the case."
262

Although Rule 704(a) ofthe

Federal Rules of Evidence permits an expert to testify to the ultimate issue in a

case, "the expert's testimony need not relate to the ultimate issue in order to be

relevant."
263

The Seventh Circuit made a notable observation in dicta. In a footnote, the
court advised that

it would be appropriate for a district court to apply Rule 702's
requirements to individual pieces of proposed testimony, so that if the

district court found a particular part of that testimony irrelevant or

unreliable, it could exclude that portion ofthe testimony without striking

the proposed evidence in its entirety.
264

This observation creates minimal disruption to the analysis ofwitness testimony

under the traditional relevancy considerations, as courts and litigants have

routinely sought to confine the testimony oflay and expert witnesses alike to the

scope of evidence relevant to the issues at trial.

However, under the principles ofDaubert and Kumho Tire Co., testing the
reliability ofportions ofan expert's testimony, rather than the expert's testimony

as a whole, creates a sea of pitfalls and opportunities for litigants and judges

alike. Upon determining that a portion ofthe expert's methodology is unreliable,
the court will then be required to determine what portion ofthe expert's opinion

is derived from unreliable methods. Opponents of the expert's testimony will

push to include the majority of the expert's opinion within the realm of the

257. Id

258. Id

259. See id

260. Id

261. See id. at 721.

262. Id. (emphasis in original),

263. Id.

264. Id. at721n.3.



898 INDIANA LAW REVIEW [Vol. 34:857

unreliable methodology, whereas proponents ofthe testimony will seek to dissect
the smallest (and perhaps most insignificant) portions ofthe expert's testimony
derived from unreliable methods from other proper testimony.

Courts must observe the overriding principle that the trial judge, standing as
gatekeeper, is only to evaluate the methodology the expert used in forming the
opinion, and not the opinion itself. In assessing whether the proffered testimony

exceeds the bounds ofthe expert's reliable methodology, the trial court will have

to consider not only the methodology employed, but the results and conclusions

that the expert asserts to have gained from the process. The trial judge must then
assess whether the substance of the proposed conclusion could have been
reasonably derived from the process without considering whether the proposed
conclusion is correct or even believable.

It was this balancing ofthe Daubert principles that the U.S. District Court for
the Northern District of Indiana considered in the case ofDartey v. FordMotor
Co.

265
In Dartey, the plaintiff claimed injuries when the tailgate of his Ford

pickup truck fell after the support cables on the tailgate snapped.
266 The plaintiff

claimed that the plastic casings surrounding the metal support cables had

deteriorated over time, allowing moisture to corrode the metal cables.
267

To support his position, plaintiff offered the testimony of two expert
witnesses, a metallurgical engineer and a plastics expert.

268
The metallurgical

engineer testified during the evidentiary hearing and also in deposition that "the

metal wires supporting the tailgate on the [Dartey' s] truck fractured due to metal

fatigue brought on by the long-term opening and closing ofthe tailgate, further

aggravated by corrosion."
269 He concluded that the metal used to support the

tailgate was unsuitable for long-term use and the design of the tailgate, which
required the metal cables to rest in a confined space over the long-term, created

a scenario in which the metal wires were bound to fail.
270 He proposed an

alternative design involving metal hinges.
271

The plastics expert testified that the material covering the cables was made
of a thin, flexible nylon material, which was cracked and hard along the entire
expanse of the cable.

272
The material, in this condition, permitted moisture to

corrode the metal wires.
273 He opined that the material "was not capable of

withstanding long-term use and, therefore, the nylon would not remain intact for

the life of the truck."
274 The expert suggested that a better material, called

thermoplastic elastimer (TPE) was available at the time the truck in question was

265. 104 F. Supp. 2d 1017 (N.D. Ind. 2000).

266. See id at 1019-20.

267. See id. at 1026.

268. See id at 1020.

269. Id

270. See id.

271. See id at 1020-21.

272. See id. at 1021.

273. See id.

274. Id.



200 1 ] PRODUCT LIABILITY 899

produced and would have been a better alternative.
275

Ford moved to exclude the testimony ofthe two experts, contending that the
experts lacked experience designing tailgates or tailgate support components.

276

Chief Judge Lee, turning to the U.S. Supreme Court's decision in Kumho Tire
Co. v. Carmichaely

211
and the Seventh Circuit's opinion in Smith v. FordMotor

Co.
,

278
rejected Ford's argument on the basis that the experts' proffered testimony

was within their realm of expertise.
The district court noted that the metallurgical engineer had sufficient

credentials to establish himself as an expert metallurgist.
279 As to Ford's

assertion that the metallurgist was not qualified as an expert in the field ofdesign
engineering, the district court determined that this factor alone did not

automatically negate all of the expert's testimony.
280

The district court determined that the metallurgical engineer's proposed
testimony related to an area other than the one concerning the ultimate issue at

trial-whether there existed a design defect in the metal cables—and encompassed
materials not readily understandable by laymen on the jury, making the expert's

testimony helpful to the factfinder.
281 The plaintiff offered the witness only as

an expert in metallurgy, and the expert could confine his proposed testimony to

the his field of expertise.
282

The court further rejected Ford's argument that the expert's methodology
was unsound under the principles ofDaubert because the witness had not: (1

)

done any testing ofhis own theory, (2) subjected his opinions to peer review; and
(3) inquired about the load that plaintiffplaced on the tailgate throughout the life

of the truck.
283 The court noted that "no single factor among the traditional

Daubert factors [was] conclusive in determining whether the methodology relied

upon by a proposed expert is reliable."
284

Here, the expert's testimony regarding

how the cable fell was "elementary in nature" and the scientific principles
underpinning his opinion were "obvious" and based on well-established scientific

principles, thereby alleviating the need to test the theory further or to submit the

opinion for peer review.
285

The district court addressed the issue pertaining to the plastics expert in
similar fashion. Ford challenged the qualifications ofthe plastics expert due to

his inexperience and unfamiliarity with design engineering.
286

The court, noting

275. See id.

276. See id.

277. 526 U.S. 137(1999).

278. 215 F.3d 713 (7th Cir. 2000).

279. See Dartey, 104 F. Supp. 2d at 1023.

280. See id.

281. See id. at 1024.

282. See id.

283. See id.

284. Id. (citing Kuhmo Tire Co. v. Carmichael, 526 U.S. 137,150 (1999)).
285. Id.

286. See id. at 1025.



900 INDIANA LAW REVIEW [Vol. 34:857

that the expert was certainly qualified in his proffered field oftestimony, found
that he need not be qualified as to the ultimate issue for trial in order to testify on
other issues relevant to the case.

287
ChiefJudge Lee determined that the plastics

engineer could testify as to the condition ofthe plastic sheathing and, due to the

condition, that it had permitted moisture to seep through and corrode the metal
wires.

288

However, with regard to both witnesses, the court specifically ordered that
neither witness could testify outside his respective field ofexpertise.

289
Applying

the Daubert standards to the various areas of proposed testimony, the court
directed that the plaintiffs witnesses would be required to confine their
testimony to only their respective topics.

290
For example, while the plastics

expert was permitted to testify as to his opinion that TPE was a better choice for
the metal cables casings, he would not be permitted to offer an opinion as to
whether Ford's failure to use TPE made the design of the tailgate defective.291

Ford also attacked the testimony of the plastics expert on the grounds of

relevancy. Ford argued that the expert (1 ) had not tested the TPE plastic; (2) had
not designed a tailgate using TPE plastic; (3) could not confirm that any
automobile manufacturer ever used TPE at the time the pickup truck was
designed; and (4) did not have evidence to dispute that nylon casings were state-

of-the-art at the time of the design.
292

Although the court noted that all these

charges may be true, it held that such would be left for cross-examination and
did not affect the overall admissibility of the proposed expert testimony on the

grounds of relevancy.
293

The Seventh Circuit Court ofAppeals further discussed the admissibility of
expert testimony in product liability cases in the matter of Weir v. Crown
Equipment Corp. 294 In Weir, a forklift operator injured her foot when the lift
collided with a parked forklift.

293 The facts indicated that the forklift on which
the plaintiffwas riding was equipped with a "deadman brake," which would stop
the forklift upon the operator lifting her foot offthe depressed brake pedal, and

a "plugging" brake, which would bring the forklift to a stop upon moving the
forklift's control lever to a reverse position.

296 The plaintiff brought an action
against the forklift manufacturer, claiming her foot was injured when the

287. See id.

288. See id.

289. See id at 1025-26.

290. See id

291. See id. at 1025.

292. See id. at 1026.

293. See id. "[T]he Seventh Circuit has recently re-emphasized Daubert's admonition that,

'vigorous cross-examination, presentation of contrary evidence, and careful instruction on the

burden of proof are the traditional and appropriate means of attacking shaky but admissible

evidence.'" Id (citing Walker v. Soo Line R.R. Co., 208 F.3d 581, 586 (7th Cir. 2000)).

294. 2 1 7 F.3d 453 (7th Cir. 2000).

295. See id. at 455-56.

296. Id at 454-55.



200 1 ] PRODUCT LIABILITY 90

1

"deadman" brake and the "plugging" mechanism failed, causing her to collide
with a parked forklift.

297 The U.S. District Court for the Southern District of
Indiana entered judgment for the manufacturer.

On appeal, the plaintiff claimed that the trial court erred in excluding
evidence and the testimony of her expert witness. Plaintiff first argued that the

trial court erred in excluding a large portion ofaccident report documents that the
manufacturer turned over to plaintiff during discovery.

298 The manufacturer
turned over more than a thousand accident reports pertaining to accidents
involving its forklifts.

299 The district court excluded all of the reports except
those that pertained to forklift accidents substantially similar to one that the
plaintiffclaimed to have experienced.

300 The district court allowed into evidence
reports "which involved a failure of both the plugging mechanism and the
deadman brake together with pre- and post-accident testing showing both brakes
to be working."

301
This reduced the number ofaccident reports admitted to only

twenty-seven.
302

In affirming the district court's ruling, the Seventh Circuit noted that

'"[e]vidence of other accidents in products liability cases is relevant to show
notice to the defendant of the danger, to show existence of the danger, and to
show the cause ofthe accident.'"303 However, before evidence ofprior accidents
is admitted, "the proponent must show that the . . . accidents occurred under
substantially similar circumstances."

304

In determining what constitutes "substantial similarity" the Seventh Circuit

turned to the decision Nachtsheim v. Beech Aircraft Corp., in which the court
held:

"The foundational requirement that the proponent of similar accidents
evidence must establish substantial similarity before the evidence will

be admitted is especially important in cases such as this where the
evidence is proffered to show the existence ofa dangerous condition or
causation. The rationale for this rule is simple. In such cases, the jury
is invited to infer from the presence of other accidents (1) that a
dangerous condition existed (2) which caused the accident. As the
circumstances and conditions ofthe other accidents become less similar
to the accident under consideration, the probative force ofsuch evidence

decreases. At the same time, the danger that the evidence will be
unfairly prejudicial remains. Thejury might infer from evidence ofthe

297. See id.

298. See id. at 457.

299. See id.

300. See id.

301. Id.

302. See id.

303. See id. (quoting Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1268 (7th Cir.

1988)).

304. Id. (quoting Nachtsheim, 847 F.2d at 1268).



902 INDIANA LAW REVIEW [Vol. 34:857

prior accident alone that ultra-hazardous conditions existed . . . and were
the cause of the later accident without those issues ever having been
proved. In addition, the costs—in terms of time, distraction and,
possibly, prejudice—resulting from such evidence also may weigh
against admissibility."

305

Here, all of the accident reports turned over to the plaintiff did not involve

incidents substantially similar to the plaintiffs accident. The plaintiff argued
"that the district court misapplied the substantial similarity test by adding

additional criteria beyond mere brake failure."
306 The Seventh Circuit disagreed,

noting that under the plaintiffs theory ofthe case, the forklift was unreasonably
dangerous because ofa design defect which resulted in brake failure in cases of

a specific nature which therefore permitted the additional criteria.
307

The court then turned to the issue of excluding the plaintiffs expert
testimony. The plaintiffargued that she should have been permitted, through her
expert, to offer evidence that the manufacturer should have incorporated a door

or barrier across the open side of the forklift and that such a mechanism was a
cost-effective remedy that would have prevented her injury.308 In ruling to
exclude the testimony, the district court found the proposed evidence irrelevant

and inadmissible because it showed that the plaintiffs foot was outside of the
running lines ofthe machine before the collision and was not forced outside the
machine by the impact.

309

The plaintiffs expert offered two alternative design theories, one involving
a door across the open side ofthe operator's compartment and another involving

a wedge-shaped barrier that the plaintiffs expert had designed. In an offer of

proof, the expert testified that the manufacturer had sold over 300 doors for its

forklifts and, upon studying accident reports, none of the accidents involving

forklifts with doors resulted in lower limb injury.
310

In affirming the trial court's exclusion ofthe expert's testimony, the Seventh

Circuit noted that, under the plaintiffs own account ofthe accident, the presence
of doors may not have prevented her injury.311 The plaintiff testified that there
was "no swerving, acceleration, bumping or rough floor to traverse" before the
collision that could have forced her foot outside the operator's compartment.

312

305. Id. at 457-58 (quoting Nachtsheim, 847 F.2d at 1268-69) (internal quotations and

citations omitted)).

306. Mat 458.
307. See id. The plaintiff contended that the design of the forklift would permit the vehicle

to continue to move ifthe "deadman" brake pedal was slightly lifted by the operator crossing over

her feet, which would disengage the "plugging" mechanism without engaging the braking

mechanism. See id.

308. See id at 459.

309. See id.

310. See id.

311. See id. at 460.

312. Id.



200 1 ] PRODUCT LIABILITY 903

The plaintiffhad been trained to keep her feet inside the operator's compartment
when operating the forklift, and the plaintiffs expert testified that he knew of
nothing that occurred to force the plaintiffs foot outside the forklift.

3 ' 3

The Seventh Circuit affirmed the exclusion of the expert's alternative door
design theory even under the "doctrine of crashworthiness."

314
Under the

doctrine of crashworthiness, "a manufacturer may be held liable for injuries
sustained in an accident where a manufacturing or design defect, although not the

cause of the accident, caused or enhanced a plaintiffs injuries."
315 The court

held:

A product is not considered to be defective under a crashworthiness
analysis merely because the product failed and caused injury. Instead,

a finding of defectiveness is based on the conclusion "that the product

failed to provide the consumer with reasonable protection under the
circumstances surrounding a particular accident. Therefore, "a claimant

should be able to demonstrate that a feasible, safer, and more practical
design would have afforded better protection."

316

Again, the Seventh Circuit emphasized the fact that no evidence was
presented showing that the circumstances surrounding the accident caused the

plaintiffs foot to leave the operator's compartment.
317

The court reasoned that
"the operator's compartment, even without a door, provided reasonable

protection under the circumstances."
318

The Indiana Court ofAppeals considered two cases during the survey period
that undertook the state counterpart to the federal Daubert analysis. In the case

of Hannan v. Pest Control Services, Inc.* 19 the court considered whether the
testimony of any of the plaintiffs' several expert witnesses was admissible in
claims for personal injuries arising from the application of a pesticide in their

home. The defendant was engaged by the plaintiffs to spray their home to
combat an infestation ofants. The plaintiffs claimed that shortly after their home
was sprayed, they began to exhibit symptoms ofthe flu. The defendant moved
for summary judgment, arguing that no genuine issue of material fact existed
regarding the plaintiffs' claims that exposure to chemicals caused their injuries,

and also moved to exclude the plaintiffs' medical causation expert witnesses.
The trial court found that the plaintiffs' expert testimony on the issue ofmedical
causation was inadmissible under Indiana Evidence Rule 702 and common
law.

320 The trial court further determined that establishing medical causation was
an essential element and that the plaintiffs' failure to submit competent and

313. See id.

314. Id.

315. Id. at 460-61 (citing Miller v. Todd, 551 N.E.2d 1 139, 1 140 (Ind. 1990)).

316. Id. at 461 (quoting Miller, 551 N.E.2d at 1 143).

317. See id.

318. Id.

319. 734 N.E.2d 674 (Ind. Ct App. 2000).

320. See id. at 678.



904 INDIANA LAW REVIEW [Vol. 34:857

admissible evidence on the issue entitled the defendant to summaryjudgment.321

In reviewing the exclusion of the plaintiffs' expert witnesses, the court of

appeals recited Indiana's two-prong standard: "(1) the subject matter [must be]

distinctly related to some scientific field, business or profession beyond the
knowledge of the average lay person; and (2) the witness [must be] shown to
have sufficient skill, knowledge or experience in that area so that the opinion will
aid the trier of fact."

322
The court noted that the first prong of this test was

clearly established in this case because medical causation questions ''are

questions of science necessarily dependent on the testimony of physicians and
surgeons learned in such matters."

323

Turning then to the second prong of the test, the court noted that Rule 702
ofthe Indiana Rules ofEvidence requires that the expert "have sufficient skill in

the particular area ofexpert testimony before the expert can offer opinions in that

area."
324 The court found that "[a]n expert in one field ofexpertise cannot offer

opinions in other fields absent a requisite showing of competency in that other
field."

325

The trial court, acting in the capacity of gatekeeper under Rule 702, "must
make a preliminary assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid" and whether it can be applied

properly to the facts in issue.
326 The expert's testimony must be supported by

"good grounds" based upon what is known establishing a standard ofevidentiary
reliability.

327
In determining whether a theory or technique is scientific

knowledge that will assist the trier offact, courts consider whether the theory can
be empirically tested, whether the theory has been subjected to peer review or

publication, and whether it enjoys widespread support.
328

The plaintiffs offered the testimony of three experts to support medical
causation. The first, Dr. Johnson, sought to testify that the plaintiffs' exposure
to the chemicals triggered a condition known as Multiple Chemical Sensitivity.329

The court of appeals noted that several jurisdictions have rejected the multiple
chemical sensitivity theory, and that in order to testify on the subject, Dr.

321. See id at 677-78. The defendant contended that the expert witnesses failed to use

generally accepted toxicological cause-and-effect methodology, their methods and opinions were

not generally accepted in the scientific medical community, their opinions did not constitute

scientific knowledge and were inherently unreliable, and the experts failed to negate other potential

causes of the plaintiffs' alleged illnesses. See id. at 677.

322. Id at 679 (quoting Bacher v. State, 686 N.E.2d 791, 800 (Ind. 1997)).

323. Id (citing Brown v. Terre Haute Reg'l Hosp., 537 N.E.2d 54, 61 (Ind. Ct. App. 1989)).

324. Id. (citing Harlan Sprague Dawley v. S.E. Lab Group, 644 N.E.2d 615, 621 (Ind. Ct.

App. 1994)).

325. Id (citing Hegerfeld v. Hegerfeld, 555 N.E.2d 853, 855-56 (Ind. Ct. App. 1990)).

326. Id (citing Hottinger v. Trugreen Corp., 655 N.E.2d 593, 596 (Ind. Ct. App. 1996)).

327. Id (citing Steward v. State, 652 N.E.2d 490, 498 (Ind. 1 995)).

328. See id. (citations omitted).

329. See id at 680.



200 1 ] PRODUCT LIABILITY 905

Johnson would have to be versed in a number of medical specialties.330

Dr. Johnson was an osteopathic physician.
331 He was not board certified in

internal medicine, had never taken the allergy or immunology board
examinations, and was not certified in allergy, immunology, preventive medicine,
occupational medicine, public health, epidemiology, neurology, toxicology,

immuno-toxicology or psychiatry.
332

Furthermore, the court found that Dr.

Johnson's method for developing his opinion consisted ofa physical examination

of the patient followed by an interview.
333

Dr. Johnson did not perform any

testing on the patient, did not examine the exposure levels or dose of the

chemical received by the patient, and he had no information regarding the
exposure level. Dr. Johnson never visited the plaintiffs' residence, had not

examined any photographs or diagrams ofthe home or its ventilation system, and
was unaware of the size of the home.

334
Dr. Johnson admitted that he had only

made a "presumptive diagnosis" of chemical sensitivity. He did not preclude
other possible bases for the patient's ailments, and conceded that the plaintiffs'

symptoms could have been caused by other ailments.335

The plaintiffs' second expert witness, Dr. Evans, sought to testify that the
plaintiffs' symptoms were caused by organophosphate exposure.336 While Dr.
Evans held a doctorate degree in toxicology, he did not have a medical degree

and was not qualified to examine patients or define human medical diagnoses.337

"Dr. Evans conceded that he [was] not qualified to testify regarding medical
causation."

338

Dr. Evans developed his opinion without information regarding the plaintiffs'

exposure level to the chemicals, without consideration of residential or

occupational exposure guidelines, and without inspecting the plaintiffs' home or
having any information pertaining to its size or ventilation. Dr. Evans conceded

that all of this information was relevant to the question of exposure level.
339

"Dr. Evans agreed that if the chemicals had been properly applied, the

plaintiff would not have suffered any medical effects from them."
340

Dr. Evans

acknowledged that the application of the chemicals in the plaintiffs' home
appeared to be within the recommended levels, and that without evidence that the
chemical was misapplied, there could be no cause-and-effect basis to conclude

330. See id. at 680 n.3.

331. See id.

332. See id.

333. See id. at 680. The diagnosis was offered for only one ofthe several plaintiffs claiming

injuries.

334. See /# at 681.

335. .See id.

336. See id.

337. See id.

338. Id.

339. See id.

340. Id.



906 INDIANA LAW REVIEW [Vol. 34:857

that the plaintiffs were overexposed to the chemicals.
341

The third expert offered by the plaintiffs was Dr. Kelly, whose proposed
testimony would have been that two of the plaintiffs acquired immunologic
abnormalities as a result of the chemicals. Dr. Kelly reached this conclusion

after relying upon blood tests that had been taken five years after the exposure,
which he did not receive until after he made his diagnosis. Dr. Kelly conceded
that his diagnosis of RADS was only tentative and equivocal and that the
symptoms and alleged exposure did not satisfy "the generally accepted and
required criteria for diagnosing RADS."342

The court found that Dr. Kelly's diagnosis of a causal connection between
the pesticide application and the plaintiffs * alleged symptoms was devoid of(1)
any analysis ofthe exposure levels plaintiffs received, which Dr. Kelly admitted
were relevant, (2) any inspection ofthe plaintiffs' residence or blueprints oftheir
home, and (3) any knowledge of the duration to which the plaintiffs' were
exposed to the chemicals.

343
Dr. Kelly conceded that he was simply making an

assumption regarding the dose level received by the plaintiffs.
344

Dr. Kelly was
also unaware that one ofthe plaintiffs had previous exposures to chemicals that

could cause a person to experience many of the same symptoms of which the
plaintiffs complained.

345

Dr. Kelly had never published any literature regarding organophosphate

chemicals or immunological disorders and could not point to any peer-reviewed

authority to support his medical causation conclusions.
346

In addition, Dr. Kelly

did not offer any explanation that would exclude other possible causes of the
plaintiffs' alleged symptoms, but acknowledged, however, that there were

numerous causes for each of the symptoms but made no effort to investigate
them.

347

The court summarized the proposed testimony of the plaintiffs' medical
causation experts as relying on "mere temporal coincidence of the pesticide

application" and the plaintiffs' alleged illnesses.
348 The court found such a

relationship insufficient to establish the element of causation.
349

The plaintiffs attempted to overcome the failure oftheir expert witnesses by
citing Femco v. Colman,350 in which the Indiana Court ofAppeals held that under
the specific circumstances the trial court did not err in not striking the affidavit

of a treating physician which, along with other materials, created a triable issue

341. See id.

342. Id. "There is no medical or scientific literature which supports the conclusion that the

chemicals can cause RADS at any dose." Id.
343. See id. at 681-82.

344. See id. at 682.

345. See id.

346. See id.

347. See id.

348. Id.

349. See id. (citing Turner v. Davis, 699 N.E.2d 1217, 1220 (Ind. Ct. App. 1998)).

350. 65 1 N.E.2d 790 (Ind. Ct. App. 1995).



200 1 ] PRODUCT LIABILITY 907

of fact sufficient to survive summary judgment.351 The court distinguished the
Femco decision by noting that, in that case, it was established that the plaintiff,
in fact, had been exposed to the substance at issue, whereas in the present case,

there was no credible evidence that the plaintiffs were exposed to any level ofthe
chemicals in question.

352
Therefore, while it may have been appropriate for the

physician in Femco to assume, without personal knowledge, that the plaintiffhad
suffered exposure to the chemical, there was nothing within the record in the
present case to allow the experts to assume such an exposure.

353

In U-Haul International, Inc. v. Nulls Machinery & Manufacturing Shop™
a U-Haul truck collided with decedent's car when a valve in the U-Haul's
breaking system allegedly failed. The decedent's estate sued both U-Haul the
producers of the brake valve component ("Valve Defendants").355

Each Valve Defendant filed a separate motion for summary judgment,
claiming that the plaintiffs product liability action failed because the plaintiff

could not designate evidence demonstrating that the brake valve was defective
and was a cause ofthe accident.356 The trial court granted the Valve Defendants'
motions, essentially leaving U-Haul, the truck's owner, as the remaining

defendant. U-Haul filed a motion to correct error, which was denied, and then
appealed.

357

In a unanimous decision, the Indiana Court of Appeals first considered

whether co-defendant U-Haul had standing to appeal the trial court's grant of
summaryjudgment in favor ofthe Valve Defendants. U-Haul argued that it was
prejudiced by the summary dismissal of the Valve Defendants because, under
Indiana's Comparative Fault Act, the jury would be required to allocate fault

among all culpable parties and non-parties.358 A dismissed party may not be
named as a non-party.359 Because the jury could not apportion fault against the
dismissed Valve Defendants, U-Haul contended that it suffered an exposure to
greater liability for the plaintiffs damages.

360

Finding this issue to be one of first impression, Judge Friedlander turned to

authority from other jurisdictions for guidance. The court examined the
decisions in Hammond v. North American Asbestos Corp. 9

36}
Roller v. Liberty

351. See id. at 794.

352. See id.

353. See id.

354. 736 N.E.2d 271 (Ind. Ct. App. 2000).

355. See id. at 273.

356. See id. at 274.

357. See id.

358. See id. at 275.

359. See id. (citing Handrow v. Cox, 575 N.E.2d 61 1 (Ind. 1991); Rausch v. Reinhold, 716

N.E.2d 993 (Ind. Ct. App. 1999)).

360. See id.

361. 565 N.E.2d 1343 (111. Ct. App. 1991).



908 INDIANA LAW REVIEW [Vol. 34:857

Mutual Insurance Co.*62 and Tinker v. Kent Gypsum Supply, Inc.*63 The court
found that these three decisions shared common principles in determining
whether a co-defendant had standing to appeal the dismissal ofanother defendant
from an action.

364
All three cases start with the proposition that, in order to have

standing to challenge a co-defendant's dismissal, a remaining defendant must
demonstrate that it is aggrieved by the co-defendant's exit from the action.365

The courts diverged, however, on whether the party claiming prejudice as a
result of the dismissal is required to take affirmative action in the trial court
proceeding to establish standing to challenge the matter on appeal.

366
The Illinois

and Wisconsin courts ofappeal, upon determining that the appellant had suffered
prejudice by the dismissal of a co-defendant, proceeded directly to an analysis
of whether the appellant's interests warranted a finding of standing.

367 Upon
finding prejudice, the Washington Court of Appeals, however, took the

additional step ofassessing whether the appellant had acted to preserve its right

to appeal the ruling.
368

Thus, the Indiana Court of Appeals determined it could

adopt one oftwo distinct analyses: the first permitting a party to challenge the
dismissal ofa co-defendant upon demonstrating the dismissal negatively affected

the appellant's interests in the litigation; the second permitting appeal if the

remaining defendant can show prejudice and took steps to preserve the issue.369

In selecting which rule to apply, the court then turned to guidance from prior

Indiana decisions. In particular, the court examined the Indiana Supreme Court's
reasoning in Bloemker v. Detroit Diesel Corp.

310
In Bloemker, a plaintiff sued

three defendants. The trial court granted plaintiffs motion to dismiss one ofthe
defendants. The remaining two defendants moved for summaryjudgment, which
the trial court also granted. The Indiana Supreme Court subsequently overturned
the grants ofsummaryjudgment in favor ofthe two defendants. On cross-appeal,
the two defendants argued that the dismissal of the first defendant should
likewise be set aside.

Finding that the remaining two defendants had not preserved the issue on

appeal, the court stated:

In cases where motions at the conclusion of the plaintiffs evidence

threaten to remove a party that a remaining defendant claims should

remain a party [or] non-party for purposes of allocation of fault, such

remaining defendant may and should oppose the motion [or] request that
any ruling be delayed until the remaining defendant has an opportunity

362. 526 N.W.2d 799 (Wis. Ct. App. 1994)

363. 977 P.2d 627 (Wash. Ct. App. 1999).

364. U-Haul, 736 N.E.2d at 277-78.

365. See id. at 278.

366. See id.

367. See id.

368. See id.

369. See id.

370. 687N.E.2d358(Ind. 1997).



200 1 ] PRODUCT LIABILITY 909

to present his evidence. In such event, the nature and purpose of the

Indiana Comparative Fault Act, together with the efficient administration

ofjustice, would normally result in a trial court's refusal to prematurely
dismiss and discharge such parties. In the present case, [the remaining

defendant] did not object to the dismissals or otherwise assert any claim

that [the other parties] should remain for purposes ofallocation of fault.
Because the statutory burden ofproof is upon the defendant with respect

to the nonparty defense, failure to timely present such an objection

waives the defense as to the dismissed parties.
371

The Bloemker court found the rationalejustifying application ofthese principles
to dismissals at the conclusion ofthe plaintiffs case applied also to defendants
dismissed before trial by summary judgment.372

The Indiana Court ofAppeals determined that in order to establish standing
to appeal the dismissal ofa co-defendant from an action, the remaining defendant

must resist the dismissal of the co-defendant at the trial court.
373

[A] defendant may not sit idly by as its interests are subjected to possible
prejudice when other co-defendants seek dismissal from the case, and
then, at a later stage in the proceedings, seek to protect that interest after

dismissal has occurred. In such cases, the court will examine the actions
undertaken to protect its interest at the stage where the co-defendant

sought dismissal, in order to determine whether the issue was
preserved.

374

The failure of defendant to articulate to the trial court any claim it would later
assert upon appeal concerning the prejudicial effect ofthe dismissal ofone of its
co-defendants waives the claim for purposes of appeal.

375

Having determined the test and standard for establishing a co-defendant's
standing to challenge on appeal the dismissal of a co-defendant, the Indiana

Court ofAppeals determined that U-Haul had adequately taken steps to oppose
the dismissal of the Valve Defendants and therefore preserved its right to raise

the issue on appeal.
376

Having determined that U-Haul had standing to challenge the dismissal ofthe
Valve Defendants from the action, the court then turned to U-Haul's contention

that the grant of summaryjudgment was inappropriate. The court noted that, in
order to establish a prima facie case of strict liability under the IPLA, the
plaintiff and for purposes of the appeal, U-Haul were required to demonstrate

that "( 1 ) the valve was defective and unreasonably dangerous, (2) said defective

371

.

Id. at 360 (quoting Bowles v. Tatom, 546 N.E.2d 1 188, 1190 (Ind. 1989)).

372. See U-Haul, 736 N.E.2d at 279.

373. See id.

374. Wat 279-80.
375. See id. at 280.

376. See id. U-Haul filed a briefin opposition to the Valve Defendants' motions for summary

judgment, and filed a motion to correct error following the ruling. See id.



910 INDIANA LAW REVIEW [Vol. 34:857

condition existed at the time the product left the Valve Defendants' control, and

(3) the defective condition was a proximate cause ofthe accident."
377

The Valve
Defendants sought summary judgment contending that the plaintiff could not
establish that the valve in question was defective and, alternatively, that if it was
defective, it was not the proximate cause of the collision.378

The Valve Defendants pointed to plaintiffs interrogatory responses, in which
it advised the Valve Defendants that the plaintiffs contention that the valve was
defective was based upon a post-accident inspection conducted by U-Haul.
However, in responding to similar interrogatories, U-Haul advised the Valve
Defendants that it did not believe the valve was defective. The Valve Defendants
further designated expert witness testimony stating that the valve in question was
not defective. The court ofappeals found that the Valve Defendants' designated
evidence specifically refuted the allegations that the valve was defective and was
a cause of the accident, and were sufficient to shift the burden to U-haul to

demonstrate the existence ofa genuine issue offact on the elements ofdefective

condition and proximate cause.
379

In response to the Valve Defendant's motions for summary judgment, U-
Haul designated testimony from three expert witnesses. The first testified that
he had concluded that there was a leak somewhere in the brake system that
caused the master cylinder to empty.

380 The second expert testified by affidavit
that, during his examination of the brake assembly, he observed manufacturing

and design defects, which caused leakage ofbrake fluid from the brake assembly.

The witness concluded that the defects were present at the tie ofmanufacture and
design. The third witness testified by affidavit that the collision would not have
occurred had the auto transport trailer had operable trailer brakes.

381

Reviewing the designated materials, the Indiana Court ofAppeals concluded

that there remained a question of fact with respect to whether the valve was
defective.

382 While the Valve Defendants' expert opined that the valve was not
defective, all of the other experts agreed that the valve was defective in some
respect. Thus, it could not be said that there was no genuine issue of material
fact regarding the question of whether the valve was defective.

383

However, this did not preclude the grant ofsummaryjudgment in favor ofthe
Valve Defendants. Considering the designated materials, the court of appeals

determined that none ofthe four experts testified both that the brake valve leaked

and that the leak was a proximate cause ofthe accident.
384 The court found that

only one expert offered an opinion that supported U-HauPs claim of proximate
cause by stating generally that the collision would not have occurred ifthe brakes

377. Mat 281.
378. See id.

379. See id at 281-82.

380. See id. at 283.

381. See id.

382. See id. at 284.

383. See id.

384. See id.



200 1
]

PRODUCT LIABILITY 9 1

1

were operable. The expert did not state that the brakes were rendered inoperable
as a result ofa leak caused by a defective valve, and in fact was not qualified to
render an opinion on the defective condition of the valve.

385

The court of appeals determined that, while the basic purpose of a vehicle
brake system is within the comprehension of lay persons, the design and
manufacture of the components of a brake system are not.

386
For this reason, it

was incumbent upon the parties opposing the Valve Defendants' motion for
summaryjudgment to designate expert evidence refuting the Valve Defendants'
evidence regarding proximate cause.

387
Because U-Haul was unable to do so, it

could not successfully challenge the grant of summary judgment in favor of its
co-defendants.

388

V. Preemption

During the survey period, Indiana courts twice managed forays into the semi-
esoteric world offederal preemption in a product liability context. In the first of

the two cases, Dow Chemical Co. v. Ehling, n9 Christina and Alex Ebling began
experiencing seizures shortly after they and their parents moved into the
Prestwick Square Apartments in February 1994. In April 1993, Prestwick Square

had entered into a pest control service agreement with Affordable Pest Control,

which obligated Affordable to provide regular pest control for roaches, ants,
silverflsh, mice, and rats. Affordable applied a pesticide commonly known as
"Dursban" in the apartment units on a preventive basis. In April 1 994, Prestwick

Square canceled its service agreement with Affordable and began using its own
maintenance personnel to apply Creal-O, a ready-to-use pesticide.

390

DowElanco, now known as Dow AgroSciences, manufactured and
distributed Dursban pesticide products pursuant to registrations with the

Environmental Protection Agency (EPA).391 As part ofthe registration process,
the EPA provided Dow Chemical Company392 with stamped and accepted labels
for its Dursban pesticide products, which the EPA authorized for use in and
around residential structures, including apartments and apartment complexes.

393

385. See id.

386. See id. at 285.

387. See id.

388. See id.

389. 723 N.E.2d 881 (Ind. Ct. App), vacated by 741 N.E.2d 1249 (Ind. 2000).

390. See id. at 888-89.

391

.

See id. at 889. "Dursban" is a trademark of Dow AgroSciences LLC. Dursban 2E was
registered with the EPA in 1982. Dursban L.O. was registered with the EPA in 1984. See id.

392. Dow AgroSciences was known as DowElanco from 1989 until 1998. Dow
AgroSciences is now an indirect, wholly-owned subsidiary ofThe Dow Chemical Company. In the
interest of consistency, this survey Article refers to DowElanco by its current name, Dow
AgroSciences. The Dow Chemical Company received the initial EPA registration approvals for
Dursban.

393. See Ebling, 723 N.E.2d at 889. The active ingredient in Dursban is chlorpyrifos. In



912 INDIANA LAW REVIEW [Vol. 34:857

Louisville Chemical Company formulated a ready-to-use pesticide known as
Creal-O. As part of the registration process for Creal-O, the EPA permitted
Louisville Chemical to adopt and incorporate the safety and toxicological data
submitted by the manufacturers of Creal-O's active and inert ingredients. The
EPA registered and authorized Creal-O's use in and around apartments and
apartment complexes.

394

Affordable did not provide the Eblings or Prestwick Square with any of
Dursban's EPA-approved warnings and labeling information. Although
Louisville Chemical provided Prestwick Square with the EPA-approved labeling
for Creal-O, it did not provide the Eblings with the label until after their exposure

to it.
395

The Eblings sued Dow AgroSciences, Louisville Chemical, Affordable Pest
Control and others, claiming that their children developed seizures and other

health conditions as a result oftheir exposure to Dursban and Creal-O.
396

After

the trial court denied their motions for summaryjudgment, Dow AgroSciences,
Louisville Chemical, and Affordable appealed. On appeal, the court of appeals
faced five separate issues.

397
This survey Article will examine only the first of

those issues: whether federal law preempts the Eblings" state law product liability

claims.

The court of appeals began its lengthy and thorough analysis of federal
preemption by reciting a history ofthe federal preemption doctrine, culminating

in the court's recognition that the critical question in any preemption analysis is

"whether Congress intended that federal regulation supersede state law."
398

In

making such a determination, the Ebling court pointed out that "any
understanding ofthe scope ofa preemption statute must rest primarily on 'a fair

understanding of congressional purposed as discerned from language of the

preemption statute and the 'statutory framework' surrounding it."
399

Having first acknowledged the relevant analysis, the court next conducted a

detailed review of the extensive nature of federal oversight of pesticide

November of 1994, Dow AgroSciences voluntarily submitted to the EPA reports of allegations of
adverse effects resulting from exposure to pesticide products containing chlorpyrifos. The EPA and
Dow AgroSciences disputed whether such reports were timely submitted. The parties eventually
entered into a consent decree in the summer of 1995, whereby Dow AgroSciences paid a civil
penalty and the EPA did not withdraw or alter its registrations for Dursban L.O. or Dursban 2E.

See id.

394. See id.

395. See id. at 890.

396. See id. at 888.

397. See id.

398. Mat 891.
399. Id. (quoting Medtronic, Inc. v. Lohr, 5 1 8 U.S. 470 ( 1 996) (emphasis in original)). The

Ebling court added, "[a]lso relevant to the analysis is the 'structure and purpose of the statute as

a whole, as revealed not only in the text, but through the reviewing court's reasoned understanding

of the way in which Congress intended the statute and its surrounding regulatory scheme to affect

business, consumers, and the law."' Id. (quoting Medtronic, 518 U.S. at 470 (citation omitted)).



200 1 ] PRODUCT LIABILITY 9 1

3

registration mandated both by the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA) and the EPA.

400

Pesticides such as Dursban and Creal-O sold or distributed in the United

States must be registered with the EPA in accordance with the
requirements of FIFRA and its associated regulations. The purpose of
the registration process is to prevent unreasonable adverse effects on the
environment, which includes not only land, air and water, but also

humans and animals.
401

The court's discussion of FIFRA regulation culminated in its quotation of the
express preemption language found in section 136v(b) of FIFRA:

(a) In general

A State may regulate the sale or use of any federally registered
pesticide or device in the State, but only ifand to the extent the

regulation does not permit any sale or use prohibited by this

subchapter.

(b) Uniformity

Such state shall not impose or continue in effect any requirements for
labeling or packaging in addition to or different from those required

under this subchapter.
402

The Ebling court next traced the relatively recent refinement ofpreemption
law from Ferebee v. Chevron Chemical Co.,

403
through Papas v. Upjohn Co.,

404

and Arkansas-Platte & GulfPartnership v. Van Waters & Rogers, Inc. 405 to
Cipollone v. Liggett Group, Inc.

406
In tracking the decisions after Cipollone, the

Ebling court cited the Supreme Court's vacation and remand of two federal
circuit court judgments, Papas v. Zoecon Corp.

407
and Arkansas-Platte & Gulf

Partnership v. Dow Chemical Co.,40* as an indication that the Supreme Court's
Cipollone preemption analysis should apply in FIFRA preemption
determinations.

409 On remand, the federal circuits in both Papas and Arkansas-
Platte held that FIFRA expressly preempts state law failure to warn claims based
upon inadequate labeling.410 The Ebling court pointed out that thereafter, all of

400. See id. at 891-92.

401. Id. at 891 (citing 7 U.S.C. § 136a(a) (2000)).

402. Id at 892 (quoting 7 U.S.C. § 136v (2000)).

403. 736 F.2d 1529 (D.C. Cir.), cert, denied, 469 U.S. 1062 (1984).

404. 926 F.2d 1019 (1 1th Cir. 1991) [hereinafter Papas /].

405. 959 F.2d 158 (10th Cir. 1992) [hereinafter Arkansas-Platte I\.

406. 505 U.S. 504 (1992).

407. 505 U.S. 1 2 1 5 ( 1 992) (vacating and remanding Papas I).

408. 506 U.S. 9 1 ( 1 992) (vacating and remanding Arkansas-Platte I).

409. Ebling, 723 N.E.2d 88 1 , 894 (Ind. Ct. App.), vacated by 74 1 N.E.2d 1 249 (Ind. 2000).

4 1 0. See id. (citing Papas v. Upjohn Co., 985 F.2d 5 1 6, 5 1 8 ( 1 1th Cir.), cert, deniedsub nom.

Papas v. Zoecon Corp., 510 U.S. 913 (1993) [hereinafter Papas II]; Arkansas-Platte & GulfP'ship
v. Van Waters, Inc., 98 1 F.2d 1 1 77, 1 1 79 ( 1 0th Cir.), cert, deniedsub nom. Arkansas-Platte & Gulf



914 INDIANA LAW REVIEW [Vol. 34:857

the federal circuits that have addressed the issue, as well as an "overwhelming
majority of state supreme and appellate courts," have concluded that FIFRA
"expressly preempts state common law claims for damages that are based on an
alleged failure to warn or convey information about a product through its EPA-
approved labeling."

4" Thus, the Ebling court concluded that FIFRA expressly
preempts all state labeling or packaging requirements that are "in addition to or
different from" those required by FIFRA.412

Having decided the scope and extent of FIFRA express preemption, the
Ebling court turned its attention to whether the legal duty forming the basis of

each of the Eblings' common law claims constituted "'a requirement[] for
labeling or packaging different in addition to or different from' the EPA
regulations."

413

In an effort to avoid preemption, the Eblings put forward what the court
called a "broader label dissemination theory," by which they argued that Dow
AgroSciences and Louisville Chemical failed to provide the Eblings with the

EPA-approved labeling information for Dursban and Creal-O.
414

The "predicate
duty" underlying the Eblings' novel argument would be "a state common law
duty imposed on pesticide registrants to provide additional copies of EPA-
approved labeling information to purchasers/users . . . with instructions that these

purchasers/users disseminate this labeling information to the end customers

and/or bystanders who might be exposed to the pesticides."415 The court
responded to the broader label dissemination theory by finding that it necessarily

challenged the product's labeling and was, therefore, preempted:

[A]ny written information that a pesticide registrant disseminates with

a pesticide is considered "labeling" under FIFRA, and any obligation
placed upon a registrant in this regard is necessarily a labeling

requirement. From this language, it is clear that Congress intended to
preempt state common law actions that would impose requirements on
a registrant to disseminate additional written matter with its product,

regardless of whether this matter was identical to the EPA-approved
labeling information.

Therefore, any supplemental materials or instructions to end-

users/applicators at a particular time would constitute "labeling" as the
term is defined by FIFRA. In essence, the Eblings challenge the
adequacy of the scope of the warnings on the Dursban and Creal-0

labels. If the Eblings prevailed on their claims of failure to warn under

such a theory, a state imposed labeling requirement not included in

FIFRA would be established. This additional state regulation is

v. Dow Chem. Co, 510 U.S. 813 (1993) [hereinafter Arkansas-Platte II]).
411. A* at 894-95.

412. Id. at 895.

413. Id. at 896 (quoting 7 U.S.C. § 136v(b)).

414. Id.

415. Id.



200 1 ] PRODUCT LIABILITY 9 1

5

precisely what Congress precluded.
416

The Eblings also alleged that Louisville Chemical negligently failed to warn,
instruct, and train the apartment complex employees to ventilate the apartments

before and after pesticide application and not to apply pesticides when tenants
were present. The court rejected the Eblings' attempts to avoid preemption of
labeling claims because, according to the court, their claims "essentially

challenge the adequacy of instructions and warnings contained in the EPA-
approved Creal-0 labeling."

417
The legal duties that the Eblings sought to impose

"constitute requirements for labeling in addition to or different from those

required by the EPA regulations, and therefore, are equally preempted by
FIFRA."418

The court next examined whether FIFRA preempted the Eblings' regulatory
non-compliance claim against Dow AgroSciences, which claimed negligence/?*?/*
se arising out of Dow AgroSciences' alleged violation of EPA reporting
obligations. The Eblings' discovery responses charged that ifDowAgroSciences
had not allegedly violated EPA reporting obligations and "had more promptly
reported to the EPA claims and allegations of adverse effects associated with
exposure to Dursban, the EPA would have imposed 'major changes to the
product labels, to the material safety data sheets and other items ' prior to the
Eblings' exposure to Dursban."

419 Dow AgroSciences argued that the Eblings 5

"noncompliance theory" was merely a "disguised challenge to the legal
sufficiency ofthe warnings on the EPA-approved product labeling."

420 The court
agreed with Dow AgroSciences. Based upon the Eblings' discovery responses,
the court wrote that "it seems quite clear that the nature of the Eblings'

regulatory noncompliance claim as disclosed by the record is inextricably related

to the adequacy ofthe warnings and precautions on the EPA-approved Dursban

label."
421

Indeed, the court recognized that the Eblings would be required to

prove that the information on the EPA-approved label was insufficient and that
a different label would have been forthcoming. Accordingly, the court held that
FIFRA expressly preempts the regulatory noncompliance claim "to the extent
that it relies on a state-law 'requirement^ for labeling ... in addition to or

different from' those required by the EPA."
422

When it came to the Eblings' design defect claims, however, the court did

416. Id. at 897 (footnote omitted). The court added that its conclusion is consistent with the

"majority of cases in other jurisdictions which have generally concluded that FIFRA preempts

failure to warn or convey information claims against pesticide manufacturers that are not directly

based on the language on the pesticide label." Id

417. Id at 898.

418. Id. The court also rejected similar failure to warn claims the Eblings asserted against

Affordable Pest Control. See id.

419. Id. at 899 (emphasis in original).

420. Id.

421. Id.

422. Id. (citation omitted).



916 INDIANA LAW REVIEW [Vol. 34:857

not believe that those claims were preempted. After a brief discussion about
Indiana Code section 34-20-2-1 and relevant authorities from otherjurisdictions,
the court concluded that FIFRA does not preempt the Eblings' design defect
claim because they are not predicated on failure to warn or convey information
through the products' labeling and packaging.

423
In doing so, the court noted that

a product liability claim premised on a design defect pursuant to the IPLA
focuses upon the dangerous propensities of a product "due to its inherent
properties and is not predicated on the adequacy of warnings on a product's
labeling or packaging."

424
In the final analysis, the court "fail[ed] to see how our

state-imposed standard ofcare relating to product design and manufacturing can
constitute a labeling requirement under FIFRA."

425

Relying on cases such as Lescs v. Dow Chemical Co.,426 Papike v.
Tambrands, Inc.,

421
and Haddix v. Playtex Family Products Corp. 429 Dow

AgroSciences countered that FIFRA expressly preempts design defect claims
because Indiana employs a consumer expectations test for determining liability
in defect claims and "'consumers may not expect more than the FIFRA-mandated
labeling provides.'"

429
In rejecting Dow AgroSciences' argument, the majority

reiterated that by recognizing the Eblings' design defect claims, it was not
requiring information on the Dursban or the Creal-0 labeling to be "'different
from' or 'in addition to'" the information FIFRA requires.430 The court wrote,
"To the contrary, we are merely recognizing a duty of manufacturers of
potentially dangerous products to guard against design defects. This requirement

does not frustrate the will of Congress or interfere with FIFRA's purpose of
establishing a uniform standard for labeling and packaging."

431

Chief Judge Sharpnack wrote an opinion concurring in part and dissenting

in part.
432

Judge Robb wrote a separate opinion concurring in part and
concurring in result in part.

433 The differences in opinion among the judges all
were related to the preemption analysis. ChiefJudge Sharpnack concurred with

respect to the handling of each of the Eblings' failure to warn claims, but
disagreed with the majority about how to handle their design defect claim.434

Chief Judge Sharpnack concluded that FIFRA preempts the Ebling's product
liability claims against Dow AgroSciences and Louisville Chemical, even the
design defect claim, to the extent that those claims are based upon consumer

423. See id. at 900.

424. Id. at 901.

425. Id. at 901.

426. 976 F. Supp. 393 (W.D. Va. 1997), ajfdt 168 F.3d 482 (4th Cir. 1999).

427. 107 F.3d 737 (9th Cir. 1997).

428. 138 F.3d 681 (7th Cir. 1998).

429. Ebiing, 723 N.E.2d at 901 (citation omitted).

430. Id. at 902 (citation omitted).

431. Id.

432. See id. at 910 (Sharpnack, C.J., concurring in part and dissenting in part).

433. See id. (Robb, J., concurring).

434. See id. at 91 3 (Sharpnack, C.J., concurring in part and dissenting in part)..



200 1 ] PRODUCT LIABILITY 9 1

7

expectations.
435

Permitting recovery based upon consumer expectations different

from those supported by the information FIFRA requires on its labels is,
according to Chief Judge Sharpnack, in effect no different from allowing

recovery for failure to make warnings different from, or in addition to, those set
forth on the label.

436
Accordingly, he dissented to the extent that the majority

opinion would permit recovery on a design defect claim based upon consumer
expectations.

437
However, ChiefJudge Sharpnack did not believe FIFRA would

preempt a "claim based upon negligence in design where it can be shown that an
alternative design was reasonably available that would have eliminated or
significantly reduced the risk ofharm that was caused to the plaintiff."438 Thus,
Chief Judge Sharpnack concurred with the majority "[t]o the extent that the

majority would permit a design defect claim based upon alternative design."
439

Judge Robb disagreed with the majority's holding that the EPA-approved
written information accompanying a pesticide constitutes "labeling" pursuant to

section 136v(b) ofFIFRA.
440

Rather, she was convinced that the dissemination
ofsuch information comprises "packaging" pursuant to the foregoing section.

441

Regardless, whether the Eblings' state common law failure to warn claim is
characterized as falling under the term "labeling" or "packaging," Judge Robb
concluded that FIFRA preempts it.442

On August 1 5, 2000, the Indiana Supreme Court accepted transfer of the
Ebling case.

443
At the time ofthis writing, the court has not yet issued a decision.

A few months after the Ebling decision, the court ofappeals revisited express
preemption in the case of Rogers v. Cosco, Inc.

AAA The case involved Shelette
Rogers' infant daughter who injured her cervical vertebrae in a traffic accident.
At the time ofthe accident, Rogers' daughter was riding in a child restraint seat
manufactured by defendant Cosco. Rogers argued that Cosco improperly
designed the seat apparently because it did not offer sufficient head and neck

support to a child the size ofRogers' thirty-two pound daughter. The trial court

435. See id. In reaching that conclusion, ChiefJudge Sharpnack agreed with the analysis of

the court in Lescs v. Dow Chemical Co., 91A F. Supp. 393 (W.D. Va. 1997).
436. See Ebling, 723 N.E.2d at 9 11

.

437. See id.

438. Id. Chief Judge Sharpnack so determined because such a claim "would not be based

upon inadequacy ofwarnings or consumer expectations about the product that were in addition to

the information concerning the product required by FIFRA.*' Id.

439. Id.

440. Id. at 912 (Robb, J., concurring).

44 1

.

Id Judge Robb noted that neither the text nor the legislative history ofFIFRA provides

a definition of the term "packaging." She believed the term to refer to the dissemination of the

written information that accompanies a pesticide. Therefore, she reasoned that "'packaging' entails

the dissemination ofthe EPA approved written information that accompanies a pesticide, referred

to as 'labeling' under section 136v(b) of FIFRA." Id.

442. See id. at 913.

443. 741 N.E.2d 1249 (Ind. 2000)

444. 737 N.E.2d 1 1 58 (Ind. Ct. App. 2000).



918 INDIANA LAW REVIEW [Vol. 34:857

granted Cosco's motion for summary judgment after deciding that the Federal
National Traffic and Motor Vehicle Safety Act ("Safety Act") preempted Rogers'
state law claims.

445

On appeal, the first ofthe three issues was whether the Safety Act expressly
preempts Rogers' state court action. The purpose ofthe Safety Act is "'to reduce
traffic accidents and death and injuries to persons resulting from traffic
accidents.'"

446
The Safety Act's preemption clause reads, in relevant part:

When a motor vehicle safety standard is in effect under this chapter, a
State or a political subdivision ofthe State may prescribe or continue in
effect a standard applicable to the same aspect ofperformance ofa motor
vehicle or motor vehicle equipment only ifthe standard is identical to the

standard prescribed under this chapter.
447

The Safety Act also contains a so-called "savings clause" providing that
'"compliance with a motor vehicle safety standard under this chapter does not

exempt a person from liability at common law.'"448

The applicable federal safety standard, Federal Motor Vehicle Safety
Standard 213 (Standard 213), "allows a manufacturer to meet its performance

criteria regarding child restraint systems through the use of booster seats, and it

contains both minimum performance and specific design requirements for child
booster seats."

449
Standard 2 1 3 also allows a manufacturer to meet upper torso

child restraint standards by using a forward barrier, such as the shield placed on

Cosco's seat. In addition, Standard 213 allows manufacturers to sell booster

seats for use by children under forty pounds.
450

After addressing some preliminary precepts about federal preemption, the
court recognized that congressional intent is a threshold concept in preemption

analysis and that "[t]he intent ofCongress may be 'express,' i.e., expressly stated
in the statute, or 'implied,' i.e., implicitly stated in the statute's structure and

purpose."
451

The court first examined express preemption. Cosco argued that the
legislature's decision to include product liability common law negligence actions
within the framework of the IPLA renders the Safety Act's savings clause
inapplicable because product liability claims in Indiana are statutory, not

common law claims.452 In assessing Cosco's argument, the Rogers court
examined the intent of the Safety Act, the language of the IPLA, and Cosco's

arguments about Rogers' crashworthiness claim. On the first score,
congressional intent, the court's review ofHouse and Senate reports led it to the
following conclusion:

445. See id. at 1162-63.

446. Id. (citing 49 U.S.C. § 30101 (2000)).

447. Id. (citing 49 U.S.C. § 30103(bXl)).

448. Id. (citing 49 U.S.C. § 30103(e)).

449. Id.

450. See id. (citing Standard 213, § 5.5.2(0).

45 1

.

Id. at 11 64 (citation omitted).

452. See id.



200 1 ] PRODUCT LIABILITY 9 1

9

Allowing common law tort remedies, while at the same time pre-
empting particular safety standards found in motor vehicle statutes or

administrative regulations, appears to be a congressional compromise
between the interest of Congress in uniformity and its interest in

permitting States to compensate accident victims upon the basis of

general common law tort standards. It is also apparent that the
application oftort standards can sometimes complement the purposes of
the Safety Act and attendant regulations setting forth minimum safety
standards by supplying manufacturers with an additional incentive to

design a safe product.

The intent of the Safety Act is to pre-empt state statutes and
administrative regulations promulgated with the specific purpose of

regulating motor vehicle safety in a manner different from that found in
the Safety Act and federal regulations. We conclude, however, that
Congress did not intend that the application ofa state's general common
law standards should be "rendered inapplicable" by the codification of

that state's common law as it applies to product liability actions. Indeed,
we conclude that Congress specifically intended that the general
standards of the common law should assist in reducing "death and
injuries to persons resulting from traffic accidents."

453

In response to Cosco's argument that the governing product liability doctrine

in Indiana is statutory, the Rogers court pointed out that, although the IPLA now
governs product liability actions, it is "legal theory derived from the common
law, albeit within the procedural framework ofthe [IPLA]."

454
Although Cosco

cited portions ofthe IPLA that seem to derogate common law, the Rogers court
responded that those provisions were not at issue in the case and that "the

presence of such provisions in derogation ofthe common law has not prevented
us from recognizing that the [IPLA], as it applies to strict liability claims, is a

codification ofthe common law ofproducts liability."455 In its final analysis on
the point, the court wrote:

The upshot is that although certain procedural portions ofthe [IPLA] are
to be strictly construed as in derogation ofcommon law, the viability of
tort claims made under the [IPLA], whether sounding in negligence or
strict liability, is to be determined by reference to the common law from
which the claims originated. This is so because the common law of
products liability negligence is simply restated in the [IPLA]. Rogers's

claims in the present case arise from the general common law, and it is
these types of claims that are the subject of the Safety Act's saving

clause.
456

453. Mat 1165.
454. Id

455. Id

456. Id



920 INDIANA LAW REVIEW [Vol. 34:857

The Rogers court next focused on implied conflict preemption, having earlier
in the opinion explained the doctrine as follows:

Implied pre-emption is manifested when a state law conflicts with
federal law. This "implied conflict pre-emption" occurs either where it
is impossible to comply with both federal and state or local law, or
where state law stands as an obstacle to the accomplishment and
execution of federal purposes and objectives.

457

After a brief discussion about Geier v. American Honda Motor Co.,458 the most
recent U.S. Supreme Court pronouncement on the subject, the court cited
evidence designated by both parties that Standard 2 1 3 allows but does not require

the use of a booster seat such as Cosco's in protecting children from injuries.

The court also cited evidence that further convinced it that Standard 213 is
intended to establish only minimum safety standards for child restraint systems.
Citing Geier for the proposition that a state may impose a stricter standard
through the agency of its general common law of torts, the Rogers court
concluded that there is no conflict between Rogers' proposed tort remedy and the
minimum standards of Standard 213.459 Thus, according to the court, "Rogers's
attempt to impose a greater safety standard through the prohibition of booster

seats such as [Cosco's] for children under forty pounds is not pre-empted by the
Safety Act."

460

Conclusion

The 2000 survey period once again proved that Indiana courts and
practitioners are actively defining, re-defining, developing, and refining Indiana

product liability law. The quality of scholarship and advocacy developed by
these decisions recommends our state'sjudiciary and counselors at bar. Product
liability, perhaps more than any other substantive area ofIndiana law, continues
to be fertile ground for lawyers and judges looking for opportunities to be

creative, insightful, and innovative.

457. Id. at 1 164 (citing In re Guardianship of Wade, 71 1 N.E.2d 851, 854 (Ind. Ct. App.

1999)).

458. 529 U.S. 861(2000).

459. See Rogers, 737 N.E.2d at 1 1 66.

460. Id.