Indiana Law Review Survey of Recent Developments in Indiana Product Liability Law Joseph R. Alberts* Introduction The first year ofthe Twenty-first Century was a busy one for Indianajudges and practitioners in the area of product liability law.' During the 2001 survey period, which is October 1 , 2000 to September 30, 200 1 ^ state and federal courts in Indiana answered some lingering questions, tackled some new issues, and added to an already impressive body of law interpreting the Indiana Product Liability Act ("IPLA").' This survey does not attempt to address in detail all cases decided during the survey period that apply Indiana product liability law. Rather, it examines selected cases that are representative of the seminal product liability issues that courts applying Indiana law have handled during the relevant time frame. This survey also provides some background information and context where appropriate. I. Cases Interpreting Statutory Definitions All claims users or consumers'* file in Indiana against manufacturers^ and * 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—Indianapolis; Chairman, Product Liability Section, Defense Trial Counsel of Indiana ( 1 999- 2001); Chairman, Corporate Counsel Section, Indiana State Bar Association. The author thanks Brenda Ferguson, Knight Anderson, James Boyers, Jeff McKean, Nelson Nettles, and Tom Jarzyniecki for their contributions. 1 . 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, however, utilize the term "product liability" (no "s"). This survey follows the lead ofthe Indiana General Assembly and likewise employs the term "product liability." 2. This Article includes some cases decided on the periphery of those dates. 3. The Indiana General Assembly first enacted the IPLA in 1978. See Pub. L. No. 141, § 28, 1978 Ind. Acts 1298, 1308, repealed by 1995 Ind. Acts 4051 (1995). It originally covered claims in tort using both negligence and strict liability theories. In 1983, the legislature amended the statute to apply only to strict liability actions. See Pub. L. No. 297-1983, § 1, 1983 Ind. Acts 1815. In 1995, the legislature amended the statute to once again encompass tort theories of recovery based on both strict liability and negligence theories. See Pub. L. No. 278- 1 995, §1,1 995 Ind. Acts 405 1 ; see also Progressive Ins. Co. v. Gen. Motors Corp., 749 N.E.2d 484, 487 n.2 (Ind. 2001). 4. For purposes of application of the IPLA, "consumer" means: (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 1428 INDIANA LAW REVIEW [Vol. 35:1427 sellers^ for physical harm^ a product* causes are statutory. The IPLA governs all such claims "regardless ofthe substantive legal theory or theories upon which the action is brought."^ The 1 995 amendments to the IPLA incorporated negligence principles in cases in which claimants base their theory of liability upon either defective design or inadequate warnings. '° "Strict liability" remains only in cases in which the theory of liability is a manufacturing defect." The 1995 amendments also limited actions against sellers,'^ more specifically defined the circumstances under which a distributor or seller can be considered a manufacturer,'^ converted the traditional state ofthe art defense into a rebuttable expected use. IND. Code § 34-6-2-29 (1998). "User" has the same meaning as "consumer." Id. § 34-6-2-147. 5. For purposes of application of the IPLA, "manufacturer" means "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 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 actual manufacturer. Id. 6. For purposes ofapplication ofthe IPLA, "seller" means "a person engaged in the business of selling or leasing a product for resale, use, or consumption." Id. § 34-6-2-136. 7. For purposes of application of the IPLA, "physical harm" means "bodily injury, death, loss of services, and rights arising from any such injuries, as well as sudden, major damage to property." Id. § 34-6-2-1 05(a). It does not include "gradually evolving damage to property or economic losses from such damage." Id. § 34-6-2- 105(b). 8. For purposes of application of the IPLA, "product" means "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 encompass 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). 9. /^. §34-20-1-1. 10. See id §34-20-2-2. 1 1 . See id. The editors ofBums Indiana Statutes Annotated have included a title that could be misleading to their readers. The short title the editors have chosen for Indiana Code section 34- 20-2-2 is "Strict Liability—Design Defect." iND. Code Ann. § 34-20-2-2. That title might cause a reader to incorrectly assume that the statute allows a claimant to prove a design defect case without proving as part of that claim that the manufacturer or seller failed to conform to what is really a negligence standard—the exercise of"reasonable care under the circumstances in designing the product." iND. CODE § 34-20-2-2. 12. See id §34-20-2-3. 13. See id §34-20-2-4. 2002] PRODUCT LIABILITY 1429 presumption/'* and injected comparative fault principles into product liability cases. '^ As such, cases interpreting the IPLA are of the utmost importance. The following cases are a sampling of those decided during the survey period that interpret terms the IPLA incorporates.'^ 14. See id. § 34-20-5-1. The presumption is that the product is not defective and that the product's manufacturer is not negligent. 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 15. The 1995 amendments changed Indiana law with respect to fault allocation and distribution in product liability cases. The Indiana General Assembly made it clear that a defendant cannot be liable for more than the amount of fault "directly attributable to that defendant," as determined pursuant to Indiana Code 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 of all 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 34-51-2-7, IC 34-51-2-8, or IC 34-51-2-9." Id 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 that the Comparative Fault Act governs. Compare id. § 34-6-2-45(a), with id. § 34-6-2-45(b). For purposes of the 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. 1 6. As noted in the opening paragraph ofthis survey Article, there are several cases that this piece does not address in great detail that are, nevertheless, worthy of special mention. One such case is Rogers ex rel. Rogers v. Cosco, Inc., 737 N.E.2d 1 158 (Ind. Ct. App. 2000), trans, denied, 761 N.E.2d 419 (Ind. 2001), which the Indiana Court of Appeals decided on November 2, 2000. Although that decision technically falls within the survey period for this Article, last year's survey Article fully addressed it. See Joseph R. Alberts & David M. Henn, Survey ofRecent Developments in Indiana Product Liability Law, 34 iND. L. REV. 857, 882-86, 917-20 (2001). In addition to Rogers, there are several published state and federal cases that Indiana product liability practitioners may be interested in that are not reviewed in this article because, although they are product liability cases, substantive product liability issues are not the focus ofthe opinions. 1430 INDIANA LAW REVIEW [Vol. 35:1427 See In re Bridgestone/Firestone, Inc., ATX, ATX II, & Wilderness Tires Products Liability Litigation, 1 55 F. Supp. 2d 1069 (S.D. Ind.) (applying Michigan and Tennessee substantive law to claims involving tort, contract, consumer protection, express and implied warranty, and unjust enrichment claims; applying federal law on RICO and Magnuson-Moss warranty issues), reconsideration granted inpart by 205 F.R.D. 503 (S.D. Ind. 2001), rev 'din part by 2SS F.3d 1013 (7th Cir. 2002); In re Bridgestone/Firestone, Inc., ATX, ATX II, & Wilderness Tires Products Liability Litigation, 199 F.R.D. 304 (S.D. Ind. 2001) (allowing plaintiff to voluntarily dismiss federal action and pursue state action if she paid defendants any filing fees they incurred); In re Bridgestone/Firestone, Inc., ATX, ATX II, & Wildemess Tires Products Liability Litigation, 131 F. Supp. 2d 1027 (S.D. Ind. 2001) (finding plaintiffs entitled to discovery about defendants' motions to dismiss on forum non conveniens grounds); In re Bridgestone/Firestone, Inc., ATX, ATX II, & Wilderness Tires Products Liability Litigation, 129 F. Supp. 2d 1207 (S.D. Ind. 2001) (determining case management procedures); In re Bridgestone/Firestone, Inc., ATX, ATX II, & Wildemess Tires Products Liability Litigation, 129 F. Supp. 2d 1202 (S.D. Ind. 2001) (denying plaintiffs' request to join tire dealer who would defeat diversity jurisdiction); In re Bridgestone/Firestone, Inc., ATX, ATX II, & Wildemess Tires Products Liability Litigation, 198 F.R.D. 654 (S.D. Ind. 2001) (allowing press to intervene in case, but limiting intervention to responses to motions for protective orders); In re Bridgestone/Firestone, Inc., ATX, ATX II, & Wildemess Tires Products Liability Litigation, 128 F. Supp. 2d 1198 (S.D. Ind. 2001) (denying plaintiffs' motion to remand case to state court); In re Bridgestone/Firestone, Inc., ATX, ATX II, & Wildemess Tires Products Liability Litigation, 128 F. Supp. 2d 1 196 (S.D. Ind. 2001 ) (refusing to issue suggestion for remand of case to state court); Szabo v. Bridgeport Machines, Inc., 199 F.R.D. 280 (N.D. Ind. 2001) (addressing, in a case involving the manufacture of an allegedly defective machine, class certification, choice of law, and misrepresentation); Ray-Hayes v. Heinamann, 743 N.E.2d 777 (Ind. Ct. App. 2001) (holding, in product liability case alleging defective passenger vehicle restraint, that trial court erred by dismissing plaintiffs' cause of action despite the fact that the summonses were filed after the expiration of the statute of limitations period), vacated by 760 N.E.2d 1 72 (Ind.), rev 'd on reh 'g, 768 N.E.2d 899 (Ind. 2002); Allstate Ins. Co. V. Dana Corp., 737 N.E.2d 1 177 (Ind. Ct. App. 2000) (insured manufacturer did not own contaminated groundwater within the meaning of insurance policy's exclusion), ajfd in part and vacated in part, 759 N.E.2d 1049 (Ind. 2001). There are also several helpful opinions, by federal district judges, that are available from sources other than official reporters. Note that those cases made available to the public only by way ofthe Southern District of Indiana's web site are not intended for publication either electronically or in paper form. Aside from the law of the case doctrine, federal district judges' decisions have no precedential authority and are not binding on other courts, other judges within the district, or even other cases before the samejudge, N.H. Ins. Co. v. Farmer Boy AG, Inc., No. I/P 98-003 1 -C- T/G, 2000 U.S. Dist. LEXIS 19502, at 1 n.l (S.D. Ind. Dec. 19, 2000); see also Howard v. Wal- Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1 998); Malabarba v. Chi. Tribune Co., 149F.3d690, 697 (7th Cir. 1998); Old Republic Ins. Co. v. Chuhak & Tecson, P.C, 84 F.3d 998, 1003 (7th Cir. 1 996). There are a number of federal cases that might be helpful to practitioners but are not available in the official reporter system. See Chubb Group of Ins. Cos. v. Buddy Gregg Motor Homes, Inc., No. IP 00-1378-C H/G, 2001 U.S. Dist. LEXIS 5040 (S.D. Ind. Apr. 17, 2001) (dismissing manufacturer's cross-claim against seller finding that Indiana allows implied indemnification only under narrow exceptions that the cross-claim did not meet); In re Lawrence 2002] PRODUCT LIABILITY 1431 A. Recovery ofDamage to Defective Product Two related cases decided on June 6, 2001, by the Indiana Supreme Court reaffirm that the IPLA does not allow a claimant to recover for damages to the defective product itself even when "other property" is damaged in the event or accident that also destroys or damages the defective product. In the first case, Progressive Insurance Co. v. General Motors Corp. ,'^ three insurance companies sued General Motors and Ford in subrogation in five separate cases after vehicles were destroyed in fires allegedly caused by defects in the wiring, the fuel lines, and transmission lineJ* Because the vehicles themselves were the only property the fires allegedly damaged, the manufacturers filed motions for summary judgment in the trial court.'' They argued, in part, that the owners, and therefore their subrogees, may not recover damages in product liability claims under the IPLA.^^ The trial courts granted summary judgments to the manufacturers in two ofthe cases and denied them in the other three.^' Considering itself bound by precedent in Martin Rispens & Son v. Hall Farms, Inc?^ and Reed v. CentralSoya Co,}^ the court ofappeals affirmed those decisions in the consolidated appeal that ensued.^'* In doing so, the court of appeals, in the language of Justice Boehm, expressed the view that "policy considerations favored the plaintiffs' claims under the [IPLA]."^^ Because the W. Inlow Accident Litig., No. IP 99-0830-C H/G, 2001 U.S. Dist. LEXIS 2747, Prod. Liab. Rep. (CCH)*j| 16,044(S.D. Ind. Feb. 7, 2001) (discussing indemnification and contribution, compliance with Local Rule 56.1, personal knowledge required for an affidavit, exclusivity provision in the Indiana Worker's Compensation Act, federal preemption pursuant to the Federal Aviation Act, and the quantum of evidence necessary to defeat summary judgment motion); Land v. Yamaha Motor Corp., No. IP 00-220-C H/G, 2000 U.S. Dist. LEXIS 201 17 (S.D. Ind. Dec. 20, 2000) (denying plaintiffs attempt to add non-diverse defendants to defeat federal jurisdiction); N. H. Ins. Co. , 2000 U.S. Dist. LEXIS 19502 (deciding tort, contract claims arising out of installation of ventilation system in hog breeding facility). 17. 749 N.E.2d 484 (Ind. 2001). 1 8. See id. at 486. The three insurers were Progressive Insurance Co., United Farm Bureau Insurance Co., and Foremost Insurance Co. See id. at 486 n. 1 . 19. See id 2X^9^6. 20. See id. 21. See id at 491. 22. 621 N.E.2d 1078 (Ind. 1993). 23. 621 N.E.2d 1069 (Ind. \99'i\ modified on reh'g,6W^.E.ldU {\r\d. 1994). 24. The court of appeals affirmed the two cases where summary judgment was granted and reversed the three where it had been denied. See Progressive Ins. Co. v. Gen. Motors Corp., 730 N.E.2d 218 (Ind. Ct. App. 2000), vacated, 749 N.E.2d 484 (Ind. 2001). 25. Progressive Ins. Co., 749 N.E.2d at 486. Although acknowledging the decisions in Martin Rispens and Reed, the court ofappeals nevertheless seemed troubled by the proposition that 1432 INDIANA LAW REVIEW [Vol. 35:1427 issue was "a recurring subject of transfer petitions," the Indiana Supreme Court granted transfer and reaffirmed the position in Martin Rispens and Reed that there is no recovery under the [IPLA] where the claim is based on damage to the defective product itself.^^ The IPLA 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 or to the user's or consumer's property if: (1) 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; (2) the seller is engaged in the business of selling the product; and (3) the product is expected to and does reach the user or consumer without substantial alteration in the condition in which the product is sold by the person sought to be held liable under this article.^^ "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 losses from such damage."^* Justice Boehm's opinion in Progressive framed the issue as whether the IPLA "imposes liability when the 'harm' caused by a 'product' is damage to the product itself, and not personal injury or damage to other property."^^ The insurance companies argued that the term "property" includes the "product," pointing out that the user or consumer "presumably views the product that self- destructs as his or somebody else's property."^° In response, the court wrote that "[ajlthough it is undoubtedly true that 'products' are ordinarily somebody's 'property,' we think that 'property' as used in the [IPLA] does not embrace the product itself"^* In its earlier Reed decision, the Indiana Supreme Court concluded that the legislature already had determined that the plaintiffs only remedy lay in contract 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. See Progressive Ins. Co., 730 N.E.2d at 220-2 1 . Because the court of appeals recognized its inability to "recast" the Martin Rispens and Reed opxmons, it was constrained to affirm the trial court's entry ofsummary judgment for GM in two of the cases and to reverse the denials of summary judgment in the other three. Id. at 221 . 26. Progressive Ins. Co., 749 N.E.2d at 486. 27. IND. CODE § 34-20-2-1 (1998). 28. Id §34-6-2-105. 29. Progressive Ins. Co., 749 N.E.2d at 487. 30. Id 31. Id 2002] PRODUCT LIABILITY 1 43 3 law "where the loss is purely economic,^^^^ and there is no damage to other property and no personal injury."^^ Also significant to the Progressive court was the fact that the General Assembly did not provide for recovery for injury to the product itself even though it amended the IPLA in 1995, well after the Indiana Supreme Court's rulings in Reed and Martin Rispens: [T]he legislature has not acted in the face of two opinions from this Court concluding that the legislature did not intend that damage to the product itself be recoverable under the [IPLA], That silence is not insignificant. Rejection of a tort claim for self-inflicted damage to a product is a choice the legislature is plainly free to make. It is grounded in the distinction between tort and contract law. It also involves a number of different policy considerations. As a general matter, when the product does not operate up to expectations and deprives its user of the benefit of the bargain, commercial law sets forth a comprehensive scheme governing the buyer's and seller's rights.^"* The insurance companies also argued that the fire damage was "sudden" and therefore covered by the IPLA, whereas the injury suffered in Martin Rispens (damage to a watermelon crop) developed over time.^^ The Progressive court rejected any distinction between the situation before it and the one before the court in Martin Rispens. The majority rejected the argument that "the issue turns on whether 'sudden, major' damage is incurred"^^ noting "[t]hat may be the case in many product malfunctions, including those involving no fire or other self- destructive result. It may be a necessary component ofa products liability claim, but it is not itself sufficient."^^ Near the conclusion of the opinion, the Progressive court addressed additional policy arguments raised by the insurance companies, including that it 32. Justice Boehm's majority opinion acknowledges that "'property damage' is distinct from 'economic damage . . .'" from the point of view of the policyholder's insurance coverage. Id. at 488. The opinion also notes: However, when addressing the validity vel non ofa tort or products liability claim based on failure of a product, the self-destruction of the product through property damage, if caused by an external force, is indistinguishable in consequence from the product's simple failure to function. In both cases, the owner's loss is the value of the product. Thus, the United States Supreme Court and others refer to damage to the product itself as "economic loss" even though it may have a component of physical destruction. Viewing such a loss as purely "economic loss" and not personal or property damage loss is consistent with Indiana law in other contexts as well. Id. 33. Id (citing Reed v. Cent. Soya Co., 621 N.E.2d 1069 (Ind. 1993)). 34. /af. at489. 35. See id. at 489-90. 36. Id. at 490. 37. Id. (footnote omitted). 1434 INDIANA LAW REVIEW [Vol. 35:1427 is simply unfair for them to bear the burden of the cost of compensating consumers for products that are defective. In response, the court observed that: [t]he insurers can rewrite their policy exclusions to deal with this ifthey choose. Presumably competitive forces compel them to cover these risks, but ifsome insurers seek to write the coverage out oftheir policies, this is their choice. To the extent insurance regulators insist on such coverage, the fairness of that position is not an issue for this Court. [0]ne efficient way for economic losses to be managed is through insurers because they have the ability to adjust their rates to reflect their loss experience .... The legislative policy to favor this means of addressing the problem is entirely rational. If it is to be changed, the General Assembly must make that determination.^^ Justice Rucker concurred in the result in a separate opinion in which Justice Dickson joined. The concurring opinion merely states that the doctrine of stare decisis compelled the outcome, citing Martin Rispens and Reed?*^ In the second case decided on June 6, 2^0\ , Fleetwood Enterprises, Inc. v. Progressive Northern Insurance Co. ,^^ the court disposed ofessentially the same issue as in Progressive^ but in a case in which the product defect at issue allegedly damaged both the product itself and other property. The Fleetwood court held that personal injury and property damage to other property from a defective product are actionable under the IPLA, but that their presence does not create a claim for damage to the product itself."*' In Fleetwood, a, fire destroyed a motor home that Fleetwood manufactured and some of the owner's personal property inside the motor home. Progressive Insurance had issued a homeowner's policy covering the motor home and reimbursed the owner for the value of the motor home and the personal property ."^^ As subrogee. Progressive sued Fleetwood under a product liability theory to recover its losses. The trial court refused to give Fleetwood's tendered jury instruction stating that the only amount ofdamages it could consider was the loss of personal property. Instead, the trial court read the Indiana pattern jury instruction allowing for recovery offair market value ofdestroyed property at the time of its destruction."^^ The jury awarded Progressive the full value of the motor home and the personal property plus prejudgment interest. "*"* The Indiana Supreme Court began its discussion by citing Progressive for the proposition that the IPLA does not provide recovery when the only damage is to 38. M at 491 (citation omitted). 39. See id. at 491-92 (Rucker, J., concurring). 40. 749 N.E.2d 492 (Ind. 2001). 41. Mat 493. 42. The homeowner's insurance policy "paid the owner $1 62,500 for damages to the motor home and $6,587.89 for damages to other personal property in the home." Id. 43. Id. The trial court chose to read Indiana Pattern Jury Instruction No. 1 1 .40. Id. 44. The total judgment for Progressive was $2 1 5,969.24. Id. 2002] PRODUCT LIABILITY 1 43 5 the defective product itself."*^ The court acknowledged, however, that other decisions, including its /?ee', 752 N.E.2d at 131. 281. /J. at 131-32. 282. 654 N.E.2d 864 (Ind. Ct. App. 1995), tram, denied 1466 INDIANA LAW REVIEW [Vol. 35: 1427 Harvey's well-known treatise on Indiana practice,^" the R.R Donnelley court agreed that Indiana requires a showing of exceptional circumstances before judges may allow discovery aimed at an expert who is not expected to be called as a witness at trial. ^^'^ In doing so, the court recognized that the purpose of Rule 26 was "largely developed around the doctrine of unfairness—-designed to prevent a party from building his own case by means of his opponent's financial resources, superior diligence and more aggressive preparation."^^^ The court concluded that Tide was an advisory witness under Rule 26(B)(4)(b) because he "was retained by Associated in anticipation of litigation, but was never added to Associated's witness list because Associated settled" before filing one.^^^ In order to use Tide at trial, the court held that NTS had to show "exceptional circumstances," which NTS did not do.^^^ The second of the three opinion witness issues on appeal involved the trial court's exclusion of rebuttal testimony the plaintiff sought to offer through a witness named Daniel Clapp. Plaintiffs offered Clapp to rebut NTS's theory offered by one ofNTS's witnesses that "the collapse was the result of a design defect" (the lack of tower bracing) and not poor welds.^*^ The trial court excluded Clapp's testimony because RRD failed to disclose timely that it would use Clapp, and rebuttal testimony "would violate the trial court's summary jury trial orders limiting the parties to theories presented at the summaryjury trial."^^^ RRD first argued that it designated Clapp as an expert witness over a year before the parties engaged in a summary jury trial. NTS deposed Clapp before the summary jury trial. RRD claimed that it did not know about NTS's design expert until one week before the summary jury trial. Thereafter, RRD supplemented its expert interrogatory response, identifying Clapp as a rebuttal witness, after which NTS deposed Clapp a second time.^^° RRD also argued that it did not violate the trial court's summary jury trial order because using Clapp to rebut NTS's theory (which it advanced for the first time at the summary jury trial) did not constitute the presentation ofa new theory.^'' Rather, RRD argued that it could not have formulated its rebuttal any earlier than the summary jury trial because that is when it first became aware of NTS's design theory.^^^ Finally, RRD argued that exclusion ofevidence was too harsh a sanction because it did not engage in "deliberate or other reprehensible conduct" that prevented NTS from receiving a fair trial.^^^ 283. See WILLIAM F. HARVEY, INDIANA Practice § 26. 1 4 (3d ed. 2000). 284. 752N.E.2datl32. 285. Id. (quoting Reeves, 654 N.E.3d at 875). 286. Id. 287. Id 288. Id 289. Id 290. /^. at 132-33. 291. /^. at 133. 292. Id 293. Id 2002] PRODUCT LIABILITY 1467 Because plaintiff proffered Clapp for rebuttal testimony, and not to espouse a new theory, the court ofappeals disagreed with the trial court's characterization ofRRD's disclosure ofthe content ofClapp' s testimony as untimely, "especially in light of the fact that Indiana Trial Rule 26(E) only requires a duty to 'seasonably' supplement discovery responses, rather than requiring immediate supplementation."^^'' The court pointed out that Clapp could not formulate his rebuttal testimony until after he was aware ofNTS's design theory, of which he first became aware at the summary jury trial.^^^ The court also noted that RRD identified Clapp as a rebuttal witness within three weeks of discovering the substance ofNTS' s expert's testimony and thatNTS deposed Clapp thereafter.^^^ Under those circumstances, the court of appeals believed that exclusion of Clapp' s testimony was too harsh a sanction because RRD did not commit any "deliberate or other reprehensible conduct . . . that prevented NTS from receiving a fair trial. '""' The third opinion witness issue addressed by the court in R.R. Donnelley involved the trial court's failure to exempt opinion witnesses from its separation order. The trial court granted NTS's motion for a separation of witnesses and "denied RRD's request to have experts in the courtroom in order to assist counsel."^^* The critical issue was whether the trial court erred in not finding RRD's opinion witnesses to be "essential to the presentation of [its] cause" under Indiana Rule of Evidence 61 5(3).^^ "Given the complexities of [the] case," the court ofappeals wrote, "it appears that the use ofexperts was essential."^°° The court also concluded that it would be necessary for the plaintiffs opinion witnesses "to be present in the courtroom to witness the testimony or be provided with daily transcripts" in order to rebut any theory the defense proffered.^^' Because the trial court denied RRD that opportunity, the court of appeals held that "the trial court abused its discretion by failing to exempt experts from the Separation Order."^^^ 294. Id. 295. Id 296. Id 297. Id 298. Id 299. Id. at 1 34. Rule 61 5(3) ofthe Indiana Rules of Evidence provides that witnesses whose presence is shown to be "essential to the presentation of the party's cause" are exempt. Id. To be exempted from separation orders, the witness must possess "such specialized expertise or intimate knowledge ofthe facts ofthe case that a party's attorney could not effectively function without the presence and aid of the witness." Id. (quoting Hernandez v. State, 716 N.E.2d 948 (Ind. 1999)). 300. Id 301. Mat 134-35. 302. Id. at 135. The R.R. Donnelley opinion also addresses the admissibility of settlement information, a demonstration used to clarify a scientific principle, and the appropriateness of instructing the jury on proximate cause. For additional analysis of the case by one of the lawyers who argued the case, see Nelson Nettles, Important Expert and Mediations Issues Addressed in Recent Product Liability Case, iND. LAW., Sept. 26, 2001, at 25. 1468 INDIANA LAW REVIEW [Vol. 35:1427 V. Preemption Three published decisions from Indiana courts examined the federal preemption doctrine as it relates to various types of product liability claims.^^^ On August 23, 2001, the Indiana Supreme Court issued an important unanimous preemption decision in Dow Chemical Co. v. Ebling?^ The Ebling decision addresses preemption pursuant to the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"). In Ebling, plaintiffs alleged physical symptoms after application ofan EPA-accepted pesticide known as "Dursban 2E"'°^ in their apartment. The plaintiffs sued, inter alia, Dow Chemical Co.,^^ the pesticide manufacturer, Affordable Pest Control, Inc., the pesticide applicator, and Louisville Chemical Company, the distributor ofanother pesticide that was used in the apartment.^"^ Among other claims, plaintiffs contended that the pesticide 303. In addition to the three cases treated in this survey, practitioners should be aware of last year's court ofappeals' opinion in Rogers ex rel. Rogers v. Cosco, Inc., 137 N.E.2d 1 158 (Ind. Ct. App. 2000) (addressing preemption issues involving the National Traffic Motor Vehicle Safety Act and Federal Motor Vehicle Safety Standard 213), trans, denied, 761 N.E.2d 419 (Ind. 2001). 304. 753 N.E.2d 633 (Ind. 2001). 305. "Dursban" is a trademark of Dow AgroSciences LLC. 306. The proper defendant in this lawsuit was not the Dow Chemical Company, but rather Dow AgroSciences, LLC, which was formerly known as DowElanco, Inc. This survey Article will simply refer to the manufacturer as "Dow." 307. Justice Boehm's opinion refers to the court of appeals' opinion for a more detailed recitation of the facts. The court of appeals' opinion is Dow Chemical Co. v. Ebling, 723 N.E.2d 88 1 (Ind. Ct. App. 2000), aJTd in part and vacated in part by 753 N.E.2d 633 (Ind. 200 1 ). A review of the facts set forth in the court of appeals' opinion in Ebling reveals that Christina and Alex Ebling began experiencing seizures shortly after they and their parents moved into an apartment at the Prestwick Square Apartments. In April 1993, Prestwick Square "entered into a pest control service agreement" with Affordable Pest Control ("Affordable"), which obligated Affordable to "provide regular pest control for roaches, ants, silverfish, mice and rats." Id. at 889- 909. Affordable applied Dursban "on a preventive basis." Id. at 890. The Eblings moved into their apartment in February 1994. "In April of 1994, Prestwick Square canceled its service agreement with Affordable and began using its own maintenance personnel to apply Creal-O, a ready-to-use pesticide" formulated by Louisville Chemical. Id. DowElanco, now known as Dow AgroSciences, manufactured and distributed Dursban pesticide products pursuant to registrations with the United States Environmental Protection Agency (EPA). See id. at 889. As part of the registration process, the EPA provided Dow 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. Id. 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-0's active and inert ingredients. The EPA registered Creal-O and authorized its use in and around residential structures, including apartments and apartment complexes." Id. Affordable did not provide the Eblings or Prestwick Square with any of Dursban's EPA- 2002] PRODUCT LIABILITY 1469 applicator breached a duty to provide the plaintiffs with the pesticide's EPA- accepted warnings and labeling information.^"* The court of appeals held in part that the manufacturer, applicator, and distributor all were entitled to summary judgment with respect to plaintiffs' failure to warn claims.^"^ Plaintiffs sought transfer, challenging the court of appeals' decision only on the FIFRA preemption issue.^'" On transfer, the Indiana Supreme Court summarily affirmed the court of appeals' decision that FIFRA expressly preempts state common law tort claims against pesticide manufacturers such as Dow and Louisville Chemical.^" The Ebling court disagreed, however, with the court of appeals concerning Affordable, the pesticide applicator, holding that FIFRA does not preempt state common law failure to warn claims against Affordable.^ *^ In doing so, the Ebling court rejected, in part, the court of appeals' 1996 decision in Hottinger v. Truegreen Corp.''' The plaintiffs argued that FIFRA did not preempt their state common law claim, "asserting that Affordable's duty ofreasonable care included an obligation approved warnings and labeling information. Id at 890. 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. Id. 308. Id at 898. 309. See id. at 910. The plaintiffs alleged various theories of recovery, including "failure to warn, strict liability, negligence, and willful/wanton misconduct." Ebling, 753 N.E.2d at 636. The trial court granted motions for summaryjudgment filed by Dow and Louisville Chemical. The trial court denied Affordable's motion. Id. All three defendants filed interlocutory appeals. See Ebling, 123 N.E.2d at 888. The court of appeals held that FIFRA expressly preempts all of the plaintiffs' claims against Dow and Louisville Chemical that relate to the product's labeling, id. at 910, which was everything except design defect claims. The court of appeals also held that FIFRA precluded plaintiffs' claim that it had an obligation to warn plaintiffs about the potential adverse effects of Dursban. Id. The court ofappeals further held that "Affordable was entitled to summary judgment on the plaintiffs' claims for strict liability under both the IPLA and common law strict liability for ultra-hazardous activity" because the transaction was predominately for the sale ofa service rather than a product. Ebling, 753 N.E.2d at 636. With respect to Affordable's negligence claim, however, the court of appeals held that summary judgment was properly denied because genuine issues of material fact existed regarding whether Affordable breached its duty of reasonable care by applying an excessive amount or concentration, by failing to properly ventilate the plaintiffs apartment, and by spraying Dursban in an area near the children's clothes and toys." Id. In addition, the court ofappeals affirmed the denial ofsummaryjudgment concerning "the plaintiffs' request for punitive damages against Affordable." Id. On transfer, plaintiffs challenged only the FIFRA preemption issue. For further discussion about the court of appeals' decision, see Alberts & Henn, supra note 16, at 91 1-17. 310. £:6/mg,753N.E.2dat636. 311. See id ^t 635-26. 312. Id Hi 636. 313. 665 N.E.2d 593 (Ind. Ct. App. 1996), overruled by Dow Chem. Co. v. Ebling, 753 N.E.2d 633 (Ind. 2001). 1470 INDIANA LAW REVIEW [Vol. 35:1427 to provide them with the information contained in the EPA-accepted Dursban label. "^''* Relying upon Hottinger, Affordable countered that the principles of preemption for failure to warn claims apply to pest control applicators "just as they do to manufacturers.""''^ According to Justice Boehm's opinion, the court of appeals in Hottinger "summarily concluded" that FIFRA preempts state common law strict liability and negligence claims that are based upon alleged inadequacy of warnings on products that FIFRA regulates.^'^ The Ebling court overruled that determination insofar as pesticide applicators are concerned.^ '^ As part of an analysis dating to McCulloch v. Maryland^^^ the Ebling court recognized that there are three distinct types of federal preemption: A federal statute may now preempt state law [1] by express language in a congressional enactment^^'^^ ["express preemption"] ... [2] by implication from the depth and breadth of a congressional scheme that occupies the legislative field^^^°^ ["field preemption"] ... or [3] by implication because of a conflict with a congressional enactment^^^'^ ["implied conflict preemption"]. ^^^ With respect to the third type, "implied conflict preemption," the Ebling court aptly noted that the "reach of federal preemption was increased" with the U.S. Supreme Court's decision in Geier v. American Honda Motor Co}^^ 314. £/)/mg, 753 N.E.2d at 636. 315. Id. 3 1 6. Justice Boehm's opinion makes a point ofstating that the supreme court never reviewed that conclusion when it denied Trugreen's petition to transfer in that case: Although finding FIFRA preemption applicable to some ofHottinger's claims, the court held that erroneous exclusion of expert opinion evidence required reversal of the summary judgment as to the remaining claims. Transfer to this Court was sought only by appellee Trugreen, whose petition to transfer was denied. To the extent that Hottinger v. Trugreen Corp. is inconsistent with our opinion herein, it is overruled. Id. at 636 n.3. 317. Id 318. 17 U.S. (4 Wheat.) 316, 427 (1819). 319. See, e.g, Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992). 320. See, eg. Fid. Fed. Sav. & Loan Ass'n v. de laCuesta, 458 U.S. 141, 153 (1982). 321. See. e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001); Geier v. Am. Honda Motor Co., 529 U.S. 861, 869-74 (2000). 322. 753N.E.2dat637. 323. 529 U.S. 861 (2000). "Before Geier;' the Ebling court wrote, "if a federal law had an express preemption clause, the reach of the preemption was limited to the domain expressly preempted." 753 N.E.2d at 637 (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). After Geier, the Ebling court recognized that "even though a state law is not within the domain expressly preempted, the state law may yet be preempted if it frustrates the purpose of the federal law or makes compliance with both impossible." Id. The Ebling court's recognition of implied conflict preemption and its quality analysis of how it is different from the other two types of federal preemption are not insignificant because courts often confuse the principles and the underlying 2002] PRODUCT LIABILITY 1 47 1 After identifying the three types offederal preemption generally, the Ebling court turned its attention to FIFRA, discussing some ofthe structure and purpose of FIFRA as well as some of the pre-Geier U.S. Supreme Court decisions that addressed FIFRA preemption.^^"* In an attempt to ensure uniformity, Congress included within FIFRA an express preemption provision that prevents a state from "impos[ing] or continu[ing] in effect any requirements for labeling or packaging in addition to or different from those required under [FIFRA]. "^^^ Indeed, the Ebling court noted "agreement among a majority ofjurisdictions" that the phrase "any requirements" in FIFRA's express preemption provision "is sufficiently expansive to include both positive enactments of state law-making bodies and common law duties enforced in actions for damages."^^^ Accordingly, the Ebling court pointed out that "[t]he law is fairly settled that when a pesticide manufacturer 'places EPA-approved warnings on the label and packaging of its products, its duty to warn is satisfied, and the adequate warning issue ends.'"^^^ That conclusion compelled an affirmance ofthe court of appeals' decision with respect to Dow and Louisville Chemical because claims against those two entities were expressly preempted. The remainder of the court's decision addresses why the law mandates a different result with respect to Affordable, the pesticide applicator. First, with respect to express preemption, the court pointed out that there is no "affirmative FIFRA labeling requirement for applicators "^^^ As such, according to the Ebling court, "the alleged state tort law duty imposed upon applicators to convey the information in the EPA-approved warnings to persons placed at risk does not constitute a requirement additional to or different from those imposed by FIFRA.'"'' Second, with respect to field preemption, the Ebling court concluded that FIFRA does not preclude the state-law imposition of a duty to warn on bases therefor. In this area, of law, practitioners should be aware of Buckman Co. v. Plaintiffs ' Legal Committee, 531 U.S. 341 (2001) (Food, Drug & Cosmetic Act and Medical Device Amendments) (holding that state law fraud on the FDA claims were preempted); see also Nathan Kimmel, Inc. v. DowElanco, 275 F.3d 1 199 (9th Cir. 2002) (FIFRA) (holding that state law fraud on the EPA claims were preempted); Raymond M. Williams & Anita Jain, Preemption ofState "Fraud-on-the-FDA " Claims, FOR Def., June 2001 , at 23. 324. See Wis. Pub. Intervenor v. Mortier, 501 U.S. 597 (1991). 325. Ebling, 753 N.E.2d at 638 (quoting 7 U.S.C. § 136v(b) (2000)). 326. Id. A lengthy footnote contains an impressive string citation to the state and federal courts that have found "any requirements" to include common law actions. See id. at 638 n.4. 327. Id at 639 (quoting Papas v. Upjohn Co., 985 F.2d 516, 519 (1 1th Cir. 1993)). 328. Id. (emphasis in original). 329. Id. Although the Ebling court acknowledged that the Hottinger court as well as courts in other jurisdictions have concluded that FIFRA expressly preempts duty to warn claims against applicators, their findings were not persuasive to the claims against Affordable because they failed to "consider the distinctions between pesticide manufacturers and applicators." Id. The opinion does not provide further explanation about the specifics of those distinctions. 1472 INDIANA LAW REVIEW [Vol. 35:1427 applicators."^ In doing so, the court relied on the U.S. Supreme Court's decision in Wisconsin Public Intervenor v. Mortier^^^ which "declined to extend FIFRA preemption to preclude local regulations requiring a pesticide applicator to give notice of pesticide use and of label information prescribing a safe reentry time and imposing fines in the event ofviolations.""^ From Mortier, the Ebling court discerned that, "like a state or local regulatory scheme that requires permits and notice to the non-user consumer/bystander and imposes penalties, the imposition of a duty to warn on applicators is not preempted by FIFRA.""^ The court also used Mortier as the basis for its decision that implied conflict preemption does not preclude plaintiffs' claims. In the Ebling court's view, "Affordable 's alleged failure to communicate label information to persons placed at risk" does not frustrate the purposes ofFIFRA nor does it render "compliance with both state and federal law impossible."""* According to the court. The plaintiffs' claim that Affordable should have communicated the label information is entirely consistent with the objectives of FIFRA. The use ofstate tort law to further the dissemination of label information to persons at risk clearly facilitates rather than frustrates the objectives of FIFRA and does not burden Affordable's compliance with FIFRA."^ A published federal trial court order by Judge Barker is also an important one for Indiana practitioners in the preemption area. The order stems from the Firestone/Ford Explorer "rollover" cases that are consolidated before Judge Barker in Indianapolis. The reported preemption order is styled In re Bridgestone/Firestone, Inc., ATX, ATXII, & Wilderness Tires Products Liability Litigation.^^^ The specific issue that the preemption order covers involves that part of the plaintiffs' master complaint requesting the court to recall, buy back, and/or replace the allegedly defective tires. The defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that plaintiffs' request for a recall is preempted by the Motor Vehicle Safety Act ("MVSA")."^ Judge Barker agreed that the recall requests were preempted and dismissed 330. Id. at 639-40. 331. 501 U.S. 597(1991). 332. £i7/mg, 753 N.E.2d at 640. 333. Id. 334. Id 335. Id 336. 153F. Supp.2d935(S.D. Ind.2001). 337. The MVSA is found at 49 U.S.C.A. §§ 30101-30170 (West 1997 & Supp. 2001). As Judge Barker noted in a later footnote, the discussion of preemption "presupposes that there is a state law providing for the claim at the heart of the lawsuit." 153 F. Supp. 2d at 940 n.6. On that point. Judge Barker wrote that it was not clear that the plaintiffs had met that prerequisite. Id. Only one case, Howard v. Ford Motor Co., No. 7683785-2 (Cal. Super. Ct. Oct. 1 1, 2000), has ever granted a plaintiffs request for a recall of a motor vehicle safety defect, and "that case is not persuasive in establishing that California law authorizes a nationwide recall." Id. 2002] PRODUCT LIABILITY 1473 them."* She then, sua sponte, certified the issue for interlocutory appeal."^ After first determining that a ruling on the issue was not premature,^'*^ Judge Barker's overview of preemption recognized, just as did the Indiana Supreme Court in Ebling, that there are at least three distinct types offederal preemption: express preemption,^'*' implied field preemption,^'*^ and implied conflict preemption.^*^ Because of what she determined to be a "significant history of activity" in the area of vehicle safety recalls, Judge Barker concluded that no presumption against preemption should be applied.^'^ She also aptly recognized that neither express preemption nor field preemption was at issue.^"^^ 338. Judge Barker's order disposed of the request for a recall of the tires in plaintiffs' preliminary injunction filing. Id. at 938. The ruling also rendered moot plaintiffs' request for preliminary injunctive relief against Ford to the extent that it sought "an immediate safety recall, replacement, or refund" of all model year 1991-2001 Ford Explorers. Id 339. [B]ecause this decision turns on a difficult and controlling question of law as to which there is substantial ground for difference of opinion and because a final resolution of this question may materially advance the ultimate completion ofthis litigation, the Court sua sponte certifies its order for interlocutory appeal, pursuant to 28 U.S.C. § 1292(b). 153F.Supp.2dat938. 340. The plaintiffs argued that a dismissal on the basis ofpreemption was premature because the court lacked **the benefits of full briefing and an evidentiary hearing on the preliminary injunction motion.*' Id. at 939. Judge Barker disagreed, writing that "a resolution of the preemption issue is entirely feasible and, indeed, appropriate at this stage. Whether federal law preempts state law-based judicial authority to order a tire or motor vehicle recall is a legal issue, not a factual one." Id. at 940 (citing Moran v. Rush Prudential HMO, Inc., 230 F.3d 959, 966 (7th Cir. 2000), qlfd, 2002 WL 1337696 (U.S. June 20, 2002)). 34 1 . "^Congress occasionally preempts the operation of state law in the express language of a statute. See, e.g., Cipollone v. Liggett Group, Inc., 505 U.S. 504, 508 (1 992) (noting that statutory language 'no statement relating to smoking and health shall be required in the advertising of . . . cigarettes' expressly prohibited states from mandating particular cautionary statements in cigarette advertisements)." 153 F. Supp. 2d at 940. 342. "When federal law so thoroughly occupies a legislative field "as to make reasonable the inference that Congress left no room for the States to supplement it," it is referred to as 'field preemption.'" 153 F. Supp. 2d at 940 (quoting Cipollone, 505 U.S. at 516). 343. "A third form of preemption, 'conflict preemption,' occurs when requirements of state law and federal law make it impossible for a party to comply with both laws or when state law 'prevent[s] or frustrate[s] the accomplishment of a federal objective.'" 153 F. Supp. 2d at 940 (quoting Geier v. Am. Honda Motor Co., 529 U.S. 861, 873-74 (2000)) (alterations by court). 344. 53 F. Supp. 2d at 942-43. 345. Express preemption was not an issue because no provision of the MVSA explicitly supersedes state-law-based injunctive relief and because the MVSA's express preemption did not apply. The MVSA's express preemption provision states that "'when a motor vehicle safety standard is in effect . . . , a State . . . may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this [Act].'" 1 53 F. Supp. 2d at 943 (quoting 49 U.S.C. 1474 INDIANA LAW REVIEW [Vol. 35:1427 Turning her attention to conflict preemption, Judge Barker noted that it exists when "it is impossible for a private party to comply with both state and federal law and where under the circumstances ofa particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives ofCongress."^"^ The defendants argued that a "parallel, competing system ofcourt-ordered and supervised recalls would undermine and frustrate the [MVSA's] objectives ofprospectively protecting the public interest through a scheme ofadministratively enforced remedies."^'*^ On that issue, Judge Barker found two U.S. Supreme Court cases instructive, International Paper Co. V. Ouellette^^^ and Chicago & Northwestern Transportation Co. v. Kalo Brick & Tile Co.^^'^ In both of those cases, the Supreme Court considered a number of factors establishing the comprehensive nature of the federal administrative scheme at issue. In International Paper, an important consideration was the fact that the Clean Water Act mandated detailed procedures for obtaining a permit to emit possible pollution.^^° The MVSA likewise sets forth a "comprehensive scheme for prospective relief from dangerous features in vehicles," which incorporates a detailed notification procedure when the Secretary of Transportation determines that a vehicle model or its equipment "contains a defect or does not comply with other safety standards."^^' According to Judge Barker, "The detail contained in the [MVSA] suggests a clear congressional intent to limit encroachment on the agency's work."^^^ Citing Kalo Brick, Judge Barker recognized that another statutory feature indicating congressional intent to preempt state-law-based intrusions into an agency's work is the grating ofdiscretion to the agency in its decision-making.^^^ On that issue. Judge Barker wrote that the MVSA "affords the Secretary [of Transportation] much discretion to determine the need for notification or remedy § 30103(b)(1) (1994 & Supp. V 1999)). "Though the Department of Transportation has promulgated a number of Federal Motor Vehicle Safety Standards (FMVSS), there is no standard that prescribes performance requirements for tires or sets a rollover standard for vehicles." Id. On the field preemption issue. Judge Barker wrote that it was "clear" that "Congress in the [MVSA] plainly did not intend to occupy the field of motor vehicle safety." Id. (quoting Harris v. Great Dane Trailers, Inc., 234 F.3d 398, 400 (8th Cir. 2000)). It was less clear whether Congress ever intended to occupy the field in connection with the issues before the court. "Whether Congress intended to occupy the field with regard to recalls (as opposed to motor vehicle safety standards generally) remains an open question—one we need not address today because the parties focus their arguments on conflict preemption, which the Court finds dispositive." Id. 346. 1 53 F. Supp. 2d at 943-44 (quoting Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372-73 (2000)). 347. Id at 944 (citation omitted). 348. 479 U.S. 481(1987). 349. 450 U.S. 311,326(1981). 350. 479 U.S. at 492. 351. 1 53 F. Supp. 2d at 944-45. 352. Mat 945. 353. Id 2002] PRODUCT LIABILITY 1475 of a defect or failure to comply with safety regulations."^^"* The National Highway Traffic Safety Administration's "broad discretion," coupled with "the specificity ofthe sections ofthe [MVSA] dealing with notification and remedies" caused Judge Barker to conclude that "Congress intended to establish comprehensive administrative regulation of recalls to promote motor vehicle safety."^^^ As such. Judge Barker determined that "the comprehensiveness ofthe [MVSA] with regard to recalls demonstrates convincingly that any state law providing for a motor vehicle safety recall would frustrate the purposes of the [MVSA]."'^' Finally, although it is not reported in the federal reporter system and ofvery limited precedential value, practitioners may fmd interesting and helpful the preemption analysis Judge Hamilton conducted in the case captioned In re Mow Accident Litigation.^^^ That case involved the accidental death of Lawrence Inlow, the former general counsel for Conseco, Inc. and related entities. Inlow was killed when he was hit in the head by a helicopter rotor blade after he disembarked from the company's helicopter.^^^ As a result, representatives of Inlow's estate sued "three distinct sets of defendants."^^^ One defendant was CIHC, Inc., a subsidiary ofConseco, Inc. alleged to have negligently operated the helicopter in question. Inlow's representatives also sued CIHC, Inc., "in its role as sublessor ofthe helicopter to Conseco, Inc.," for alleged negligence in failing to warn of a dangerously defective product.^^^ The preemption issue was just one of several Judge Hamilton addressed in his order, CIHC argued that the Federal Aviation Act shields it from liability in its role as the lessor ofthe helicopter because the "limitation of liability" section of the FAA provides that "an aircraft lessor can be liable for personal injuries caused by the aircraft only if the lessor is in actual possession or control of the 354. Id. In more fully explaining the level of federal involvement. Judge Barker wrote: As an example, the Secretary has the authority to decide that notification by first class mail alone is insufficient and order that "public notices shall be given in the way required by the Secretary" after the Secretary has consulted with the manufacturer. The Secretary also has authority to disapprove the date set by the manufacturer as the earliest date that parts and facilities reasonably can be expected to be available to remedy the defect or noncompliance. As long as the Secretary permits public input through established procedures, the Secretary can even "decide [that] a defect or noncompliance is inconsequential to motor vehicle safety," and exempt the manufacturer from providing notification or a remedy. Id. (citations omitted) (alteration by court). 355. Id 356. Id 357. No. IP 99-0830-C H/G, 2001 U.S. Dist. LEXIS 2747, Prod. Liab. Rep. (CCH) ^ 1 6,044 (S.D. Ind. 2001). 358. /^. at*2-*3. 359. M at*3. 360. Id 1476 INDIANA LAW REVIEW [Vol. 35:1427 aircraft."^^' After a close analysis of the applicable law and facts, including a detailed review of the controlling lease agreement, Judge Hamilton determined that no genuine issue ofmaterial fact existed that could support a conclusion that CIHC "controlled" the helicopter at the time of the accident.^^^ Conclusion Indiana courts and practitioners continue to define, re-define, develop, and refine Indiana product liability law. The survey period has once again proved that product liability practice in Indiana is as rich in its adversarial tradition as it is proud of its practitioners and adjudicators. As Mr. Shakespeare so well put it many years ago, our charge remains simple: "And do as adversaries do in law—Strive mightily, but eat and drink as friends.*'^^^ 361. Id, at *43. The relevant provision of the Federal Aviation Act is 49 U.S.C. § 441 12 (1994). 362. Seeid.?X*5A'*^%. 363. William Shakespeare, The Taming of the Shrew, act I, sc. 2.