Indiana Law Review


Survey of Recent Developments
IN Product Liability Law

Joseph R. Alberts*
Jason K. Bria**

Introduction

The 2003 survey period' once again produced an interesting array of
published product liability decisions. Those decisions demonstrate that Indiana

judges and product liability practitioners are still refining the scope and meaning

of the Indiana Product Liability Act ("IPLA").^ They also demonstrate that the
Indiana General Assembly may need to clarify some of its policy intentions in
several areas.

This survey does not attempt to address in detail all cases applying Indiana

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

selected cases that are representative of the important product liability issues.

This survey also provides some background information, context, and
commentary where appropriate.

I. The Scope OF THE IPLA

The Indiana General Assembly first enacted the IPLA in 1978. It originally
governed claims in tort utilizing both negligence and strict liability theories. In

1983, the General Assembly amended it to apply only to strict liability actions.*
In 1 995, the General Assembly amended the IPLA to once again encompass tort
theories of recovery based upon both strict liability and negligence theories.^

In 1998, the General Assembly repealed the entire IPLA and recodified it.

* Litigation Counsel, Dow AgroSciences L.L.C., Indianapolis. B.A., cum laude, 1991,
Hanover College; J.D., magna cum laude, 1994, Indiana University School ofLaw—Indianapolis.
Chairman, Product Liability Section, Defense Trial Counsel of Indiana (1999-2001).

* Attorney, Drewry Simmons Pitts & Vomehm, L.L.P., Indianapolis. B.A., 1996, Ball
State University; J.D., 2001, Indiana University School ofLaw—Indianapolis. The authors thank
James M. Boyers for his contributions.

1

.

The survey period is October 1 , 2002 to September 30, 2003.

2. IND. Code §34-20-1-1 to -9-1 (1999). This survey Article follows the lead ofthe Indiana

General Assembly and employs the term "product liability" (not "products liability") when referring

to actions governed by the IPLA.

3. Judge Barker's decision in In re Bridgestone/Firestone, Inc. (Estate ofZachary), 2002

U.S. Dist. LEXIS 24954 (S.D. Ind. 2002), is one example of a product liability decision that

practitioners may find useful even though much ofthe opinion interprets Georgia law. The decision

contains a discussion about exclusion of expert testimony in federal court that practitioners may

find particularly useftil.

4. 1983 Ind. Acts 1815.

5. 1 995 Ind. Acts 405 1 ; see Progressive Ins. Co. v. Gen. Motors Corp., 749N.E.2d 484, 487

n.2 (Ind. 2001).



1248 INDIANA LAW REVIEW [Vol. 37:1247

effective July 1, 1998.^ The 1998 recodification did not make substantive
revisions; it merely redesignated the statutory numbering system to make the
IPLA consistent with the General Assembly's reconfiguration of the statutes
governing civil practice.

The IPLA, Indiana Code sections 34-20- 1 - 1 to -9- 1 , governs and controls all
actions that are brought by a user or consumer against a manufacturer or seller

for physical harm caused by a product, regardless of the theory of liability.^
When Indiana Code sections 34-20-1-1 and -1-2 are read together, there are five
unmistakable threshold requirements (regardless oftheory) for liability under the

IPLA: (1) a claimant whom is a user or consumer and is also in the class of
persons that the seller should reasonably foresee as being subject to the harm

caused; (2) a defendant that is a manufacturer or a seller engaged in the business

of selling a product; (3) physical harm caused by a product; (4) a product that is

in a defective condition unreasonably dangerous to a user or consumer or to his

property; and (5) a product that reached the user or consumer without substantial

alteration in its condition.^

In connection with the foregoing threshold issues, it is important to recognize

that Indiana Code section 34-20-1-1 clearly states that the IPLA governs and
controls all claims brought by users or consumers against manufacturers or

sellers for physical harm arising out of the use of a defective and unreasonably

dangerous product. Such is true "regardless of the theory of liability."^

6. The current version of the IPLA is found at Indiana Code sections 34-20- I-I to -9-1

.

7. IND. Code §34-20-1-1.

8. /<i. §§ 34-20-1-1 to -1-2. Indiana Code section 34-20-2-1 imposes liability only when

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 ... 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.

M §34-20-2-1.
9. In the wake of the 1995 amendments to the IPLA, practitioners and sometimes judges

have seemed to struggle with what the IPLA covers and what it does not. Indiana Code section 34-

20-1-1 provides that the IPLA governs and controls all actions brought by users and consumers

against manufacturers or sellers (under the right circumstances) for physical harm caused by a

product regardless ofthe theory ofliability. Accordingly, theories of liability based upon breach

ofwarranty, breach of contract, and common law negligence against entities that are outside ofthe

IPLA's statutory definitions are not governed by the IPLA. E.g., N.H. Ins. Co. v. Farmer Boy AG,

Inc., 2000 U.S. Dist. LEXIS 19502, at *9 (S.D. Ind. 2000) (alleging breach of implied warranty in

tort is a theory of strict liability in tort and, therefore, has been superceded by the theory of strict

liability; plaintiffcould proceed on a warranty theory so long as it was limited to a contract theory).

At the same time, however, Indiana Code section 34-20-1-2 provides that the "[IPLA] shall not be

construed to limit any other action from being brought against a seller of a product." iND. CODE



2004] PRODUCT LIABILITY 1249

A. User or Consumer

The language the General Assembly employs in the IPLA is very important
when it comes to who qualifies as IPLA claimants. Indiana Code section 34-20-
1-1 provides that the IPLA governs claims asserted by "users" and "consumers."
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 of the product during its reasonably expected use.'^

"User" has the same meaning as "consumer."'

'

A literal reading of the IPLA seems to demonstrate that even if a claimant
falls within one of those statutorily-defmed groups, he or she also must satisfy

§ 34-20-1-2. That language, when compared with the "regardless of the legal theory upon which

the action is brought" language found in Indiana Code section 34-20-1-1 raises an interesting

question: whether alternative claims against product sellers or suppliers that fall outside the reach

of the IPLA are still viable when the "physical harm" suffered is the very type of harm the IPLA

otherwise would cover. See Joseph R. Alberts & James M. Boyers, Survey ofRecent Developments
in Product Liability Law, 36 iND. LAW REV. 1 165, 1 177-78 (2003); see also text accompanying

infra notes 96-97.

In three recent cases, Ritchie v. Glidden Co. , 242 F.3d 7 1 3 (7th Cir. 200 1 ), Kennedy v. Guess,

Inc., 765 N.E.2d 213 (Ind. Ct. App. 2002), and Goines v. Federal Express Corp., 2002 U.S. Dist.

LEXIS 5070 (S.D. 111. 2002) (applying Indiana law), courts subjected "sellers" to potential liability

based on common law negligence theories for the very same "physical harm" covered by the IPLA.

In doing so, those and other courts seem to assume that common law "negligence" claims based

upon design and warning theories still exist separate and apart from the IPLA, citing to cases that

were decided before the 1 995 amendments to the IPLA and at a time when Indiana still recognized

dual-track strict liability and negligence claims. The 1995 amendments impose negligence

standards for design and warning claims and retain strict liability only for manufacturing claims.

Whether courts have the power to impose common law negligence liability against "sellers"

when the harm allegedly suffered is the same "physical harm" covered by the IPLA is an open

question. If a "seller" cannot be held liable for "physical harm" that is clearly within the purview

ofIPLA {e.g., a manufacturing defect theory when the seller has no actual knowledge ofthe defect

and cannot otherwise be deemed a manufacturer pursuant to Indiana Code section 34-20-2-4 or

Indiana Code section 34-6-2-77), how can the same entity be liable for the same "physical harm"

outside the purview of the IPLA? That idea seems to run contrary to the Indiana General

Assembly's policy determination that the IPLA covers all actions for "physical harm" "regardless

ofthe theory of liability." The Indiana General Assembly may need to address whether and to what

extent a common law negligence claim for the same "physical harm" covered by the IPLA is an

"other action" that the IPLA does not limit.

10. iND. Code § 34-6-2-29.

11. Id §34-6-2-147.



250 INDIANA LAW REVIEW [Vol. 37:1247

another statutorily-defined threshold before proceeding with a claim under the

IPLA. That additional threshold is found in Indiana Code section 34-20-2-1(1),
which requires that the "user" or "consumer" also be "in the class ofpersons that

the seller should reasonably foresee as being subject to the harm caused by the
defective condition."'^ The IPLA does not appear to provide a remedy to any
claimant whom a seller should reasonably foresee as being subject to the harm
caused by a product's defective condition. Rather, it would appear as though the

claimant first has to fit within the IPLA's definition of "user" or "consumer." If

the claimant falls outside of the IPLA's definition of "user/consumer," whether

that claimant was "reasonably foreseeable" as being subject to harm caused by
a product's defect may be irrelevant.

Indiana courts have issued several published decisions in recent years that

construe the statutory definition of"user" and "consumer."'^ The latest, Vaughn
V. Daniels Co.,^"^ is a case in which Solar Sources, Inc. ("Solar") contracted

Daniels Company ("Daniels") to design, procure and construct a coal preparation
plant. Daniels contracted Trimble Engineers and Constructors, Inc. ("Trimble")

to construct the plant, including the assembly of three coal sumps according to
Daniels' blueprints and specifications. Trimble employed Vaughn, who was
injured while installing one of the coal sumps into the coal preparation plant. In

an effort to assist his coworkers, Vaughn climbed onto the sump without securing
his safety belt while a pipe was maneuvered through the wall of the plant by a
forklift and raised to the level of the sump. Once the pipe was raised, Trimble
employees wrapped a chain around the pipe to support it as the forklift pulled
away. The chain gave way, the pipe slipped, and Vaughn fell fifteen feet,
suffering significant injuries. Vaughn sued Solar and Daniels. His theories of
liability against Daniels included product liability, negligence and nuisance.'^

His theories of liability against Solar were negligence and nuisance.'^

The trial court granted Daniels' motion for summaryjudgment, concluding
as a matter of law that Vaughn was not a foreseeable "user or consumer" as
contemplated by the IPLA.'^ Vaughn appealed. Daniels argued that because the

12. Id. § 34-20-2-1, see also supra notQ^.

13. See Butler v. City of Peru, 733 N.E.2d 912 (Ind. 2000) (holding maintenance worker

could be considered a "user or consumer" of electrical transmission system because his employer

was the ultimate user and he was an employee of the "consuming entity"); Estate of Shebel v.

Yciskawa Elec. Am., Inc., 713 N.E.2d 275 (Ind. 1999) (holding "user or consumer" includes a

distributor who uses the product extensively for demonstration purposes).

14. 171N.E.2d\\\0i\n6.Ct.App.2002),clanfiedonrehearmg,7^2N.E.2d 1062(2003).

In his dissenting opinion, ChiefJudge Brook concluded that Vaughn could not maintain an action

against Solar or Daniels under the IPLA. Vaughn, however, did not make a claim against Solar

under the IPLA. Accordingly, the clarification on rehearing recognized: "Given that Vaughn did

not maintain an action against Solar under the [IPLA], any mention in ChiefJudge Brook's dissent

of Solar's liability under the act should be disregarded." Vaughn, 782 N.E.2d at 1062-63.

15. Vaughn, 117 'N.E.2ddii 1110.

16. Id

17. Id



2004] PRODUCT LIABILITY 1 25

1

sump was not designed to be a "construction scaffold," Vaughn was not a
foreseeable user or consumer of it. Daniels also argued that Vaughn could not
maintain a claim under the IPLA because the sump had not been injected into the
stream ofcommerce and that Vaughn was not a member ofthe consuming public.

In a 2-1 decision, a majority of the court of appeals held that Vaughn was a
"user" of the construction scaffold as that term is statutorily defined.'^ The fact
the sump was not being used for its primary intended purpose was irrelevant to
the majority because "the installation would be encompassed under the umbrella

of reasonably expected uses."'^

In reaching its decision, the Vaughn majority first distinguished two cases
upon which the trial court relied, Thiele v. Faygo Beverage, Inc}^ and Lukowski
V. Vecta Educational Corp}^ The majority first refused to apply Thiele, which
held that a stock clerk who was injured by an exploding soda bottle was not a
"user" or a "consumer." The Vaughn majority distinguished Thiele on its facts
because Thiele worked for a passing intermediary whereas Vaughn worked for
the initial consuming entity.^^ The Vaughn majority also believed it important
that the sump was at its final destination being installed for use and, therefore,
not a "transient producf such as a case of soft drinks.^^

The second case, Lukowski v. Vecta Educational Corp. ^^ involved a plaintiff
who fell from the top ofthe balcony bleachers in a high school gymnasium. The
school had elected to use the bleachers in a partially finished condition before the

railings had been delivered. The Vaughn majority summarized the Lukowski
court's holding by recognizing that an unfinished product does not meet the

"delivery" prerequisite for the imposition of liability under the IPLA.^^ The

18. Id. at 1128.

19. /^. at 1127-28.

20. 489 N.E.2d 562 (Ind. Ct. App. 1986).

21. 401 N.E.2d 781 (Ind. Ct. App. 1980). The Vaughn majority also discussed two other

cases, Crist v. K-mart, 653 N.E.2d 140 (Ind. Ct. App. 1995) and Wingett v. Teledyne Industries,

479N.E.2d51 (Ind. 1985). The majority opinion includes a discussion about Cm/ ostensibly as
a way to point out what the majority termed a "logical inconsistency" in Thiele and to note that

Daniels, unlike the defendant in Crist, could be liable because it was not an '"occasional seller who

is not engaged in that activity as part of [its] business.'" Vaughn, 111 N.E.2d at 1 125 (quoting

Crist, 653 N.E.2d at 143). Wingett is another case the trial court cited. The Vaughn majority's

discussion about Wingett is limited, merely pointing out that the Indiana Supreme Court, while

holding that a manufacturer's potential liability for products placed in the stream ofcommerce does

not extend to the demolition ofthe product, reasoned that it was "necessary to look at the intended

use of a product in analyzing the issue of foreseesable use in determining whether a plaintiff is a

user or consumer." Id. at 1 125-26 (citing Wingett, 479 N.E.2d at 56).

22. 777 N.E.2d at 1 124. Thiele was a "middle man" employee who merely handled Faygo's

product as it flowed in the stream of commerce toward a retail purchaser. Thiele, 489 N.E.2d at

585-88.

23. 777 N.E.2d at 1124-25.

24. 401 N.E.2dat781.

25. 777 N.E.2d at 1 124-25 (citing Lukowski, 401 N.E.2d at 786).



1252 INDIANA LAW REVIEW [Vol. 37:1247

Vaughn majority then determined that the two cases are different because the
school in Lukowski opted to use the bleachers before the railing had been shipped

and installed, whereas the sump was not designed with a railing.^^ The Vaughn
majority buttressed its conclusion that the cases are legally distinguishable by

pointing out that the injury in Lukowski was not foreseeable to the manufacturer
because it was "not expected that the school would use the bleachers for
members ofthe public in a partially completed state."^^ According to the Vaughn
majority, however, Vaughn's injury during installation was "foreseeable and
expected" by Daniels^^ and Vaughn "was not injured as a result ofsomeone using
the sump in an incomplete state in an unforeseeable manner."^^

After distinguishing Thiele and Lukowski, the Vaughn majority found
instructive the case of Stegemoller v. ACandS, Inc.,^^ using its rationale as the
foundation for the opinion. Stegemoller and its two companion matters, Martin
V. ACandS, Inc?^ and Camplin v. ACandS, Inc.^^ are cases in which the Indiana
Supreme Court held that the wives of insulators who were exposed to asbestos
fiber by washing their husbands' work clothes qualified as "users" of the
asbestos-containing products at issue because of their status as "bystanders"

pursuant to what is now Indiana Code section 34-6-2-29(4)." That section
provides the final offour alternative definitions for the term "user/consumer" for

purposes of the IPLA, defining "user/consumer" to include "any bystander

injured by the product who would reasonably be expected to be in the vicinity of
the product during its reasonably expected use."^"* The Stegemoller court
determined that the reasonably expected use of asbestos-containing products

included customary clean-up activities such as cleaning asbestos residue from

one's person and clothing at the end ofthe workday.^^ According to the Vaughn

26. /c^. at 1125.

27. Id.

28. Id. The Vaughn majority concluded that the injury was foreseeable and expected by

Daniels because Daniels hired Trimble to install the sump according to its plans in order for the

machine to become operational. Id.

29. Id

30. 767 N.E.2d 974 (Ind. 2002).

31. 768 N.E.2d 426 (Ind. 2002).

32. 768 N.E.2d 428 (Ind. 2002).

33. In Stegemoller, Martin, and Camplin, the wives claimed that asbestos dust remained on

their husbands' work clothes, and that they inhaled the dust brought home from the various

workplaces while laundering those work clothes. The wives claimed various illnesses, all allegedly

caused by inhalation of asbestos fibers. The trial court dismissed the wives' claims, finding that

they were not "users" or "consumers" as defined by the IPLA because they were not in the vicinity

of the product during its reasonably expected use (as industrial insulation) and, accordingly, could

not be considered "bystanders." Id. Thus, the trial court held that the wives could not sustain

causes of action under the IPLA or at common law. Id. The Indiana Court of Appeals affirmed.

Id. The Indiana Supreme Court reversed. Id.

34. Ind. Code § 34-6-2-29(4) (1999).

35. 767 N.E.2d at 976. The Stegemoller court was influenced heavily by what it viewed as



2004] PRODUCT LIABILITY 1253

majority:

[I]t is self-evident that if, for example, maintenance is a reasonably

expected "use" of a product, the person performing the maintenance is

a "user" of the product. Thus, the supreme court's analysis as to who
falls within the definition of "user and consumer," even as a bystander,

is instructive to our analysis today.^^

The Vaughn majority further wrote:

By approving maintenance and 'customary clean-up activities' as
reasonably expected uses for purposes of determining who is a user or
consumer, including bystander, the [Stegemoller] court expanded the
application ofthe [IPLA] to activities beyond the exact intended purpose
ofthe product. The [Stegemoller] court included not only the intended
use of the product, but also those activities related to furthering the use

of the product.^^

Accordingly, the Vaughn majority concluded that it is a "logical extension ofthe
[Stegemoller] analysis to include in the definition of user or consumer a person
who is injured while installing a product. The installation of a product is the
preparation of a product for safe operation, just as maintenance is in many
cases."^^

That the sump was not yet being used for its primary intended purpose
(processing slurry) was, according to the Vaughn majority, not fatal to the claim
because the installation "would be encompassed under the umbrella of

a point implicit in Butler v. City ofPeru, 733 N.E.2d 912 (Ind. 2000). The Butler court held that

a maintenance worker who was electrocuted while trying to restore power to an electrical outlet was

a user or consumer under the IPLA. The Stegemoller court wrote: "Implicit in th[e Butler] holding

was the assumption that maintenance may be part of a product's reasonably expected use." 767

N.E,2d at 976. The Stegemoller court further reasoned that the "normal, expected use of asbestos

products entails contact with its migrating and potentially harmful residue" and concluded that

"divorcing the underlying product from fibers or other residue it may discharge is not consistent

with the [IPLA]." Id.

The opinions in Stegemoller, Camplin, and Martin either broaden the term "vicinity" or they

broaden the term "reasonably expectable use," or perhaps they do both. On the one hand, it is hard
to argue that the wives in these three cases were anywhere close to the "vicinity" of the products

in their intended use as industrial insulation at the commercial jobsites where their husbands

worked. On the other hand, it is admittedly difficult to argue with the court's logic that the

"reasonably expectable" use ofasbestos insulation necessarily entails contact with migrating fibers

and that it does not make sense to divorce those fibers from the insulation end product. In light of

Stegemoller, Camplin, and Martin it is difficult to ascertain with any certainty just how broadly

courts will (or should) view the "vicinity" of the "reasonably expectable use."

36. 777N.E.2dat 1127.

37. Id.

38. Id



1254 INDIANA LAW REVIEW [Vol. 37:1247

reasonably expected uses."^^ Indeed, the Vaughn majority wrote that it was
foreseeable to Daniels that installation would be required and that the sump could
not become operational for its intended purpose without being installed. In that
sense, the court reasoned, it is a "different kind of product than many other
consumer products affected by the [IPLA].'"**^ The majority's final reasoning is
as follows:

The installation process was not only foreseeable but expected and
routine, just as the cleaning process in Stegemoller and the maintenance

was in Butler. If Vaughn was, in fact, injured by Daniels' defective
product, it seems illogical that he would be precluded from pursuing a
suit against Daniels simply because the sump was not completely
installed when he was injured while trying to install it, particularly when
the alleged defect affected his ability to install it safely.'*'

The Vaughn majority's "logical extension" oiStegemoller is noteworthy for
at least a couple of reasons. First, the majority utilized a "reasonably

foreseeable" analysis from a case that interpreted "bystanders" under Indiana

Code section 34-6-2-29(4) and applied it in the context of the "user/consumer"
definition found in Indiana Code section 34-6-2-29(2). Second, the majority's
"reasonably foreseeable" analysis applied in arriving at the "user/consumer"

determination may be at odds with a literal reading of the IPLA.
With respect to the first point, the Vaughn majority unmistakably utilized the

Stegemoller analysis, having initially recognized that Vaughn could not be a
"user" or "consumer" under the "bystander" definition found in Indiana Code
section 34-6-2-29(4)).'*^ Because Vaughn was neither a "purchaser" (Indiana
Code section 34-6-2-29(1)) nor a "person who, while acting for or on behalf of
the injured party, was in possession and control of the product in question"

(Indiana Code section 34-6-2-29(3)), the claim could not proceed under the IPLA
unless the Vaughn was a person, who "used" or "consumed" the product pursuant
to Indiana Code § 34-6-2-29(2). Applying the Stegemoller rationale, the Vaughn
majority concluded that installers such as Vaughn should fall within the statutory
definition of "user/consumer.'"*^

In its initial introduction of the Stegemoller case, the Vaughn majority

characterizes Stegemoller as a case that considered the "notion of reasonably

foreseeable use.'"*"* Whether the issue of legal foreseeability was truly before the
Stegemoller court is open to interpretation because the standard by which

bystanders are determined to be "users/consumers" is one that examines whether

the claimant is a person "who would reasonably be expected to be in the vicinity

39. Id.

40. Id.

41. Mat 1127-28.
42. Id

43. Id

44. Id at 1126.



2004] PRODUCT LIABILITY 1255

of the product during its reasonably expected use.'"^^ It is not unfair to say that

whether a use is factually or legally "foreseeable" by a manufacturer is not

necessarily synonymous with the use the manufacturer expects or intends.
Regardless, there are two fundamental precepts upon which the Vaughn majority
rests that are largely driven by public policy: (1) that the General Assembly
intended the term "reasonably expected use" to, as Stegemoller determined,

include maintenance and clean-up activities so as to confer "user/consumer"

status on bystanders; and (2) that the General Assembly intended that the
installation of a product itself, without more, should confer "user/consumer"

status upon the individual performing the installation.

The first precept, embraced by the Indiana Supreme Court, holds that the
General Assembly intended the IPLA to allow recovery by bystander "users" for
injuries sustained during maintenance or "clean-up" attendant to a product's

"reasonably expected use" pursuant to Indiana Code section 34-6-2-29(4).
Although many industrial and commercial products require some amount of
maintenance attendant to their reasonably expectable use, the IPLA contains no
clear policy statement about whether it was intended to cover injuries sustained
during "maintenance" or "clean-up" attendant to reasonably expected use for

purposes of Indiana Code section 34-6-2-29(4).
The Vaughn majority's second precept holds that the General Assembly

intended the IPLA to provide recovery for injuries sustained during all activities,
including installation, that relate in any way to furthering the product's use.
Chief Judge Brook took issue with that in his dissent:

While I agree that current precedent supports the conclusion that

maintenance of a product may be part of that product's "reasonably
expected use" under certain limited circumstances, it simply does not

follow that installation of the product itself, without more, confers

"user" status on the individual performing the installation.

The verb "use" may be defined as "[t]o employ or make use of (an
article, etc.) esp[ecially] for a profitable end or purpose[.]" The verb
"install" may be defined as "[t]o place (an apparatus, a system of
ventilation, lighting, heating, or the like) in position for service or use[.]"

Quite simply, installation of a product occurs before use ofthe product

has even begun and therefore cannot be part of a product's use.

Consequently, one who installs a product cannot be a user under the
[IPLA].''

It is also interesting that the Vaughn majority relied so heavily upon a

foreseeability analysis in supporting its legal determination that installation of a

product, which is admittedly not part of its "primary intended purpose," is

nevertheless "encompassed under the umbrella of reasonably expected uses.'"*^

45. IND. Code §34-6-2-29(4) (1999).

46. 777 N.E.2ci at 11 40 (Brook, C.J., dissenting) (footnote and citations omitted).

47. Id. at 1 127. The Vaughn majority reached its conclusion despite the fact that the sump,

by the majority's own admission, was not being used at the time the injury was sustained for its



1256 INDIANA LAW REVIEW [Vol. 37:1247

Reliance upon such an analysis in arriving at the "user/consumer" determination

may be at odds with a literal reading of the IPLA. As briefly discussed above,
the IPLA seems to separate the "reasonably foreseeable plaintiff analysis from
the analysis required to determine who qualifies as a "user/consumer." Indiana
Code section 34-20-2-1(1) states that "users" and/or "consumers" must also be
"in the class ofpersons that the seller should reasonably foresee as being subject

to harm caused by the defective condition/"*^ Thus, the plain language of the
statute seems to assume that a person or entity is already defined as a "user" or

a "consumer" before the separate "foreseeability" analysis is to be undertaken.

In that regard, the IPLA may not automatically provide a remedy to any claimant
whom a seller should reasonably foresee as being subject to the harm caused by
a product's defective condition.

With that statutory framework in mind, recall that the Stegemoller opinion

was limited to a determination about whether a claimant qualified as a
"user/consumer" by virtue of "bystander" status conferred by Indiana Code
section 34-6-2-29(4). Recall also that a bystander "user" is one "who is in the
vicinity of the product during its reasonably expected use." The General
Assembly's inclusion of the term "reasonably expected" when modifying the
word "use" for purposes of who qualifies as bystander "users" certainly seems
to entail something akin to a foreseeability analysis. Thus, the Stegemoller

court's use of a foreseeability analysis similar to what was performed earlier in
cases such as Lukowski or Wingett does not seem inconsistent with the IPLA in
the limited context of interpreting the scope of bystander "users" pursuant

Indiana Code section 34-6-2-29(4). The definition of "user" for purposes of
Indiana Code section 34-6-2-29(2), however, contains no such "reasonably
expected" component or requirement. It states merely that a "user" is "any

individual who uses or consumes the product." Nothing modifies the term
"uses." If the IPLA does indeed contemplate a foreseeability analysis only after
the statutory definition of "user/consumer" has been satisfied, then any such

analysis in arriving at the "user/consumer" definition for purposes of Indiana

Code section 34-6-2-29(2) may be at odds with the intended post- 1995 statutory
framework."^^

The statutory interpretations offered by the Indiana Supreme Court in
Stegemoller and the Indiana Court of Appeals in Vaughn involve fundamental

intended purpose (processing slurry). Id.

48. Indiana Code section 34-20-2-1 imposes liability only when

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 . . . if . . . that user or consumer is in the class ofpersons that the

seller should reasonably foresee as being subject to the harm caused by the defective

condition. ...

IND. Code § 34-20-2- 1 ( 1 999).
49. In this regard, it is important to note that all of the cases distinguished or rejected by the

Vaughn majority were decided several years before the General Assembly revised and enacted the

current IPLA in 1995.



2004] PRODUCT LIABILITY 1257

choices about the intended breadth of the IPLA. This is an area with respect to

which the General Assembly may choose to offer additional guidance.

B. Manufacturer or Seller

For purposes ofapplication ofthe IPLA, "manufacturer" means "a person or
an entity who designs, assembles, fabricates, produces, constructs, or otherwise
prepares a product or a component part ofa product before the sale ofthe product
to a user or consumer."^^ For purposes of application of the IPLA, "seller"

means "a person engaged in the business of selling or leasing a product for
resale, use, or consumption."^' Indiana Code section 34-20-2-1(2) of the IPLA
employs nearly identical language when addressing the threshold requirement
that liability under the IPLA will not attach unless the "seller" is "engaged in the
business of selling the product."^^

Sellers also can be manufacturers. The definition of "manufacturer"
expressly 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 ofthe 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.^^

A seller also may be held liable to the same extent as a manufacturer in one
other limited circumstance, namely if the court is "unable to hold jurisdiction

over a particular manufacturer" and if the seller is the manufacturer's principal

distributor or seller.^"^

50. IND. Code § 34-6-2-77.

51. Id. §34-6-2-136.

52. Id. § 34-20-2-1(2); see, e.g., Williams v. REP Corp., 302 F.3d 660 (7th Cir. 2002)
(recognizing that Indiana Code section 34-20-2-1 imposes a threshold requirement that an entity

must have sold, leased, or otherwise placed a defective and unreasonably dangerous product into

the stream of commerce before IPLA liability can attach and before that entity can be considered

a "manufacturer" or "seller"); Del Signore v. Asphalt Drum Mixers, 1 82 F. Supp. 2d 730 (N.D. Ind.

2002) (reasoning that although it provided some technical guidance or advice relative to ponds at

an asphalt plant, such activity was not sufficient to constitute substantial participation in the

integration of the plant with the pond so as to deem defendant a "manufacturer" of the plant).

53. iND. CODE § 34-6-2-77(a).

54. Id. § 34-20-2-4; see, e.g., Goines v. Fed. Express Corp., 2002 U.S. Dist. LEXIS 5070

(S.D. 111. 2002) (applying Indiana law). The court examined the "unable to hold jurisdiction over"

requirement of Indiana Code section 34-20-2-4. The plaintiffassumed that "jurisdiction" refers to

the power of the court to hear a particular case. The defendant argued that the phrase equates to



258 INDIANA LAW REVIEW [Vol. 37:1247

There is one other important provision about which practitioners must be

aware when it comes to liability of "sellers" under the IPLA. When the theory
of liability is based on "strict liability in tort,"^^ Indiana Code section 34-20-2-3

provides that an entity that is merely a "seller" and cannot be deemed a
"manufacturer" is not liable and is not a proper IPLA defendant.^^

There are no published decisions during the 2003 survey period that address

in detail manufacturers or sellers under the IPLA.

"personal jurisdiction." The court refused to resolve the issue, deciding instead simply to deny the

motion for summaryjudgment because the designated evidence did not clearly establish entitlement

to application of Indiana Code section 34-20-2-4. Id. Kennedy v. Guess, Inc., 765 N.E.2d 213,

217-18 (Ind. Ct. App. 2002) (defendants failed to designate sufficient evidence demonstrating

foreign manufacturer and distributor were not the "principal distributor or seller" of an allegedly

defective umbrella, and absent evidence to show definitive identity of principal distributor, court

refused to apply Indiana Code section 34-20-2-4 to bar liability).

55. The phrase "strict liability in tort," to the extent that the phrase is intended to mean

"liability without regard to reasonable care," appears to encompass only claims that attempt to

prove that a product is defective and unreasonably dangerous by utilizing a manufacturing defect

theory. Indiana Code section 34-20-2-2 provides that cases utilizing a design defect or a failure to

warn theory are judged by a negligence standard, not a "strict liability" standard. iND. CODE § 34-

20-2-2.

56. In Ritchie v. Glidden Co., 242 F.3d 713, 725 (7th Cir. 2001 ), the court cites what is now

Indiana Code section 34-20-2-3 for the proposition that sellers in a product liability action may not

be liable unless the seller can be deemed a manufacturer. Applying that reading of what is now

Indiana Code section 34-20-2-3, the court held that defendant Glidden could not be liable pursuant

to the IPLA because the plaintifffailed to designate sufficient facts to demonstrate that Glidden had

actual knowledge ofan alleged product defect (lack ofwarning labels) and because Glidden did not

meet any of the other statutory definitions or circumstances under which it could be deemed a

manufacturer. Id. There is an omission in the Ritchie court's citation to what is now Indiana Code

section 34-20-2-3 that may be quite significant. The statutory provision quoted in Ritchie leaves

out the following important highlighted language: "[A] product liability action based on the

doctrine ofstrict liability in tort may not be commenced or maintained " Id. (emphasis added).

The Ritchie case involved a failure to warn claim against Glidden under the IPLA. Indiana Code

section 34-20-2-2 provides that "strict liability in tort" applies now only to IPLA cases in which the

theory supporting why the product was defective and unreasonably dangerous is a manufacturing

defect. Indiana Code section 34-20-2-2 unequivocally provides that liability regardless of the

exercise ofreasonable care simply does not apply to warning or design claims, which are controlled

by a negligence standard. Thus, if indeed the phrase "strict liability" means "liability without

regard to the exercise of reasonable care," then the only theory to which such a standard applies is

a manufacturing defect theory. E.g., Burt v. Makita USA, Inc., 212 F. Supp. 2d 893 (N.D. Ind.

2002). Accordingly, the Ritchie court, in a negligent failure to warn case, seems to be applying a

provision of the IPLA that was only intended, as written, to be applied to sellers in manufacturing

defect cases. Courts appear to have done the same thing in Kennedy, 765 N.E.2d at 2 1 7- 1 8, Goines,

2002 U.S. Dist. LEXIS 5070 (applying Indiana law), and Williams, 302 F.3d at 660.



2004] PRODUCT LIABILITY 1259

C Physical Harm Caused by a Product
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."^^ It does not include "gradually evolving
damage to property or economic losses from such damage."^^

For purposes ofapplication ofthe IPLA, "product" means "any item or good
that is personalty at the time it is conveyed by the seller to another party."^^ "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."^^

There are no published decisions during the 2003 survey period that address

either the "physical harm" or "product" requirements.

D. Defective and Unreasonably Dangerous

Succinctly stated and as noted above, the IPLA imposes liability in favor of
statutorily-delineated users and consumers against statutorily-delineated

57. IND. Code §34-6-2-105.

58. Id.\ see, e.g., Miceli v. Ansell, Inc., 23 F. Supp. 2d 929 (N.D. Ind. 1998) (in a case

brought by a couple against a condom manufacturer, court denied a motion to dismiss, determining

that Indiana recognizes that pregnancy may be considered a "harm" in certain circumstances);

Fleetwood Enter., Inc. v. Progressive N. Ins. Co., 749 N.E.2d 492 (Ind. 2001) (holding personal

injury and property damage to other property from a defective product are actionable under the

IPLA, but their presence does not create a claim for damage to the product itself); Progressive Ins.

Co. V. Gen. Motors Corp., 749 N.E.2d 484 (Ind. 2001) (holding no recovery under IPLA where

claim is based on damage to the defective product itselQ; see also Great N. Ins. Co. v. Buddy Gregg

Motor Homes, Inc., 2002 U.S. Dist. LEXIS 7830 (S.D. Ind. 2002) (no recovery under IPLA in case

involving motor home destroyed in a fire allegedly caused by a defective wire in the engine

compartment).

59. Ind. Code §34-6-2-1 14.

60. M; e.g.,N.H. Ins. Co. v. Farmer Boy AG, Inc., 2000 U.S. Dist. LEXIS 19502 (S.D. Ind.
2000) (J. Tinder) (installation of a custom-fit electrical system into a hog barn involved wholly or

predominately the sale of a service rather than a product); R.R. Donnelley & Sons Co. v. N. Tex.
Steel Co., 752 N.E.2d 1 12 (Ind. Ct. App. 2001) (manufacturer of component parts of a steel rack

system sold a product and did not merely provide services because it modified raw steel to produce

the component parts and, in doing so, transformed the raw steel into a new product that was

substantially different from the raw material used); Marsh v. Dixon, 707 N.E.2d 998 (Ind. Ct. App.

1999) (an amusement ride involved the provision of a service and not the sale of a product);

Lenhardt Tool & Die Co. v. Lumpke, 703 N.E.2d 1079 (Ind. Ct. App. 1999) (defendant provided
products and not merely services because it transformed metal block into "new" products and

because it repaired damaged products, both of which created "new," substantially different work

product); see also Great N. Ins. Co., 2002 U.S. Dist. LEXIS at 7830 (involving a fire that destroyed

a motor home, plaintiff insurance carrier attempted to state a claim for negligent inspection against

defendant separate and apart from IPLA and court rejected the negligence claim, determining that

no reasonable juror could determine that the allegedly negligent inspection occurred as part of a

transaction for "services" separate and apart from the purchase of the motor home).



1260 INDIANA LAW REVIEW [Vol. 37:1247

manufacturers and sellers ofdefective and unreasonably dangerous products that

are expected to and do, in fact, reach users or consumers without substantial

alteration in their condition.^' The "rule of liability" in Indiana Code section 34-
20-2-1 provides that such is true even though: "(1) the seller has exercised all

reasonable care in the manufacture and preparation of the product; and (2) the

user or consumer has not bought the product from or entered into any contractual

relation with the seller."" What Indiana Code section 34-20-2-1 bestows,
however, in terms of liability despite the exercise of "all reasonable care," (i.e.,

fault) Indiana Code section 34-20-2-2 largely removes. Chapter 2-2 first
eliminates the privity requirement between buyer and seller for imposition of

liability, but it also confirms that a manufacturer's or seller's exercise of

reasonable care eliminates liability in cases in which the theory of liability is

design defect or warning defect:

[I]n an action based on an alleged design defect in the product or based

on an alleged failure to provide adequate warnings or instructions

regarding the use of the product, the party making the claim must

establish that the manufacturer or seller failed to exercise reasonable

care under the circumstances in designing the product or in providing the

warnings or instructions."

Indiana courts and commentators routinely have recognized that the post-

1995 I PLA imposes a negligence standard in design and warnings cases, while
retaining strict liability (liability despite the "exercise ofall reasonable care") for

manufacturing defect cases.^"* Thus, just as in any other negligence case, a

claimant in a design or warnings case must prove: (a) duty; (b) breach of duty;

and (c) injury caused by the breach.^^ Even though Indiana is years removed
from the 1 995 amendments to the IPLA, some courts and practitioners continue
to use language that implies that "strict liability" and/or "liability without regard

to reasonable care" still applies to cases in which the theory of liability is based

upon inadequate warnings or improper design.^^

In Chapter 4 of the IPLA, the focus returns to the IPLA's threshold

requirement that only products that are in a "defective condition" are products

61. IND. Code §34-20-2-1.

62. Id. § 34-20-2-2.

63. Id.

64. See Burt v. Makita USA, Inc., 212 F. Supp. 2d 893, 899-900 (N.D. Ind. 2002); Timothy

C. Caress, Recent Developments in the Indiana Law ofProducts Liability, 29 iND. L. REV. 979, 999

( 1 996) ("The effect of [Indiana Code section 34-20-2-3 and Indiana Code § 34-20-2-4] is to prevent

the user or consumer injured by a product with a manufacturing defect from suing the local retail

seller of the product on a strict liability theory unless, for some reason, the court cannot get

jurisdiction over the manufacturer.").

65. See Kennedy v. Guess, Inc., 765 N.E.2d 213, 220 (Ind. Ct. App. 2002).

66. See Smock Materials Handling Co. v. Kerr, 719 N.E.2d 396 (Ind. Ct. App. 1999) (court

found no error in the trial court's use of the term "strict liability" in its instructions to the jury in

a case that was not limited to manufacturing defects).



2004] PRODUCT LIABILITY 1 26

1

for which liability may attach pursuant to the IPLA. For purposes of the IPLA,

a product is in a defective condition if at the time it is conveyed by the
seller to another party, it is in a condition: (1) not contemplated by

reasonable persons among those considered expected users or consumers
of the product; and (2) that will be unreasonably dangerous to the

expected user or consumer when used in reasonably expectable ways of
handling and consumption.^^

As noted above, claimants in Indiana prove that a product is in a "defective
condition" by asserting one or a combination of three theories: (1) the product

has a defect that is the result of a malfunction or impurity in the manufacturing

process; (2) the product has a defect in its design; or (3) the product lacks

adequate or appropriate warnings.

There is a specific statutory provision covering the warning defect theory; it

states that,

[a] product is defective . . . if the seller fails to: (1 ) properly package or

label the product to give reasonable warnings of danger about the

product; or (2) give reasonably complete instructions on proper use of

the product; when the seller, by exercising reasonable diligence, could
have made such warnings or instructions available to the user or
consumer.^^

The IPLA also provides two specific provisions concerning when a product
is not defective. Indiana Code section 34-20-4-3 provides that "[a] product is not
defective under [the IPLA] if it is safe for reasonably expectable handling and

consumption. If an injury results from handling, preparation for use, or

consumption that is not reasonably expectable, the seller is not liable under [the

IPLA]."^^ Indiana Code section 34-20-4-4 provides that "[a] product is not
defective under [the IPLA] if the product is incapable of being made safe for its
reasonably expectable use, when manufactured, sold, handled, and packaged
properly."^^ Those two statutes are consistent with the two requirements for

liability set forth in Indiana Code section 34-20-4-1

.

The statutes that comprise Chapter 4 confirm that the IPLA requires that the
product at issue be both in a condition not contemplated by expected users or
consumers and unreasonably dangers to the expected user or consumer when
used in reasonably expectable ways. Indiana Code sections 34-20-4-3 and 34-20-
4-4 solidify that, as do recent cases. ^' A product is "unreasonably dangerous" if

67. IND. Code §34-20-4-1.

68. Id. § 34-20-4-2.

69. Id. § 34-20-4-3.

70. Id § 34-20-4-4.

71. 5ee Moss v.Crosman Corp., 136F.3d 1169, 1174(7thCir. 1998) (stating that a product

may be "dangerous" in the colloquial sense, but not "unreasonably dangerous" for purposes of

IPLA liability); In re Inlow, Accident Litigation, 2002 U.S. Dist. LEXIS 8318, at *66; CCH Prod.
Liab. Rep. PI 6,346 (S.D. Ind. 2002) ("Although closely related to the question of whether a



1262 FNDIANA LAW REVIEW [Vol. 37:1247

its use exposes the user or consumer to a risk of physical harm beyond that
contemplated by the ordinary user or consumer who purchases it with ordinary
knowledge about the product common to consumers in the community7^ A
product is not unreasonably dangerous if it injures in a way or in a fashion that,
by objective measure, is known to the community of persons consuming the
product.

^^

7. Warning Defect Theory.—The duty to warn in Indiana consists of two
duties: (1) to provide adequate instructions for safe use, and (2) to provide a

warning about dangers inherent in improper use.^'* Indiana courts have been
active in recent years in resolving cases involving warning defect theories.^^

In Birch v. Midwest Garage Door Systems^^ a young girl "sustained serious
injuries when the door of the garage closed down on her while she was lying in
its path."^^ The Birches purchased the home from J. Robinson Homes
("Robinson"), a general contractor that builds and sells homes.^^ On April 3,
1993, at Robinson's request. Midwest Garage Door Systems ("Midwest")

installed an automatic garage door opener system in the home that Robinson was
constructing for the Birches.^^

Most garage door systems have two types of safety mechanisms: (1) an
"impact/rebound" type that prevents injury by triggering the door to stop closing

when the lower edge of the door makes contact with any object; and (2) an

product is defective because a failure to warn, a plaintiff must show that the product was

unreasonably dangerous as a separate element of a product liability claim."").

72. See IND. CODE § 34-6-2-146.

73. See In re Inlow, 2002 U.S. Dist. LEXIS 8318, at *66 (citing Anderson v. P.A. Radocy

& Sons, Inc., 865 F. Supp. 522, 531 (N.D. Ind. 1994)).
74. See Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d 155, 161 (Ind. Ct. App. 1997).

75. See Burt v. Makita USA, Inc., 212 F. Supp. 2d 893 (N.D. Ind. 2002) (rejecting the

argument that a saw should have had warning labels making it more difficult for the saw guard to

be left in a position where it appeared to be installed when in fact it was not; the scope of the duty

to warn is determined by the foreseeable users of the product and there was no evidence that the

circumstances of plaintiffs injuries were foreseeable such that defendants had a duty to warn

against those circumstances); In re Inlow, U.S. Dist. LEXIS 8318 (holding manufacturer and

distributor did not have a duty to warn helicopter operators or passengers exiting or boarding

helicopter about known, open and obvious dangers that were posed by moving and decelerating

rotor blades); McClain v. Chem-Lube Corp., 759 N.E.2d 1096 (Ind. Ct. App. 2001) (reasoning

because designated evidence showed that both defendants knew that the product at issue was to be

used in conjunction with high temperatures that occurred as a result ofthe hot welding process, trial

court should have addressed whether the risks associated with use of product were unknown or

unforeseeable and whether or not the defendants had a duty to warn of the dangers inherent in the

use of the product); see also Morgen v. Ford Motor Co., 762 N.E.2d 137 (Ind. Ct. App. 2002)

(accrual before 1995 amendments to IPLA).

76. 790 N.E.2d 504 (Ind. Ct. App. 2003).

77. Id. at 508.

78. Id at 507.

79. Id



2004] PRODUCT LIABILITY 1263

"optical sensor" type that prevents injury by not allowing the door to close if an

electric beam, located across the bottom of the door opening, is interrupted by
any object.

^°

On January 1, 1993, before Midwest installed an "impact/rebound" system
at the Birch residence, the Consumer Product Safety Commission issued a
Federal Residential Garage Door Safety Requirement ("Federal Safety
Requirement") that required garage door opener manufacturers to incorporate

"optical sensors" as a standard safety feature.^' Although the Federal Safety

Requirement was effective January 1, 1993, manufacturers were permitted to
continue selling door closing systems without optical sensors if they were built

before January 1, 1993 so long as those systems complied with an applicable

federal safety entrapment standard.^^ Although Midwest advised Robinson about

the Federal Safety Requirement and the practical considerations related to

selecting the garage door system, the Birches had no part in selecting the

"impact/rebound" system used.^^ The Birches received a manual with the
impact/rebound system, which strongly recommended an optical sensor system
for families with small children.^'* Although the Birches became aware of the
availability ofoptical sensors as an alternative to impact/rebound safety systems,

they never installed an optical sensor system.^^

The Birches sued Robinson, Midwest, Chamberlin Group (manufacturer of
the garage door opener) and Windsor Door (manufacturer of a spring on the

garage door).^^ Robinson and Midwest were the only active parties to the appeal,

and Midwest was the only party alleged to be liable under the IPLA.^^ The
Birches' theory against Midwest alleged it was liable as a manufacturer because
it was aware of the defective condition of the door.^^ The Birches argued that
their garage door system was defective because of its design and because

Midwest failed to warn them about the new Federal Safety Requirement.^^
Midwest filed a motion for summaryjudgment in the trial court, arguing that the
garage door was not defective and that, in any event, it was not the

manufacturer.^^ The trial court granted summary judgment for Midwest and the
Birches appealed.^'

Plaintiffs argued that Midwest was liable under Indiana Code section 34-20-

80. Id.

81. Id.

82. Id

83. Id at 507-08.

84. /^ at 508.

85. Id

86. Id at 508 n.2.

87. Mat 508-16.
88. Id at 508-09.

89. Id at 517.

90. Id at 516.

91. Id



1264 INDIANA LAW REVIEW [Vol. 37:1247

2-1 as a seller of a product in a defective condition.^^ The Birches argued that

their garage door system without optical sensors was in a defective condition

unreasonably dangerous to the Birches within the confines of the IPLA.^^ The
Birches alleged that their system was in a dangerous condition because it lacked

an optical sensor and because the impact/rebound system may not work as
intended if it is not properly maintained.^'* Indeed, the operating manual for the

impact/rebound system at issue warned that maintenance needed to be performed

monthly, and the record disclosed that the Birches only tested the system once

during a four year period.^^

Plaintiffs also contended that the impact/rebound system at issue was
defective because the federal government "banned" systems without optical

sensors.^^ Plaintiffs argued that because Midwest knew of the Federal Safety
Requirement regarding optical sensors, Midwest should bear liability as a
manufacturer because that term included "a seller who 'has actual knowledge of
a defect in a product.

'"^^ The court concluded that the garage door system at

issue was not defective and that a change in a safety regulation, in and of itself,
did not make a product defective.^^ Furthermore, the court found it important
that the Federal Safety Requirement permitted the continued sale of systems

without optical sensors.^^

Next, the court turned its attention to the Birches' failure to warn theory that

the "garage door opener was defective because Midwest failed to warn them 'that
their garage door opener was no longer legal to manufacture for safety

reasons. ""^^ Focusing on the designated evidence that illustrated the Birches'

knowledge of the alleged defect, the court concluded that Midwest had no duty
to warn plaintiffs about changes in federal safety regulations because the system
manual they received included numerous warnings regarding impact/rebound

systems and that "there was no information about garage door openers that could
have been provided by Midwest that would have added to the Birches'
understanding of the characteristics of the product.'"^'

The Seventh Circuit also issued a published opinion in an allegedly
inadequate warnings case. In Ziliak v. AstraZeneca,^^^ plaintiffs physician

prescribed an inhaled corticosteroid called Pulmicort Turbuhaler ("Pulmicort")

to treat the plaintiffs asthma. Pulmicort, manufactured by defendant

AstraZeneca, contained package inserts warning that "rare instances ofglaucoma.

92. Id. at 516-17.

93. /c^. at 517-18.

94. /f^. at 518.

95. Id.

96. Id

97. Id at 517 n.7 (quoting iND. CODE § 34-6-2-77(a) (1999)).

98. Id at 518.

99. Id

100. Id. (quoting Appellant Br.).

101. Id at 518-19.

102. 324 F.3d 518 (7th Cir. 2003).



2004] PRODUCT LIABILITY 1265

increased intraocular pressure, and cataracts have been reported following the
inhaled administration of corticosteroids."'°^ Approximately ten months after
plaintiff began taking Pulmicort, she developed severe glaucoma, cataracts, and
high intraocular pressure.'^'* Plaintiff sued AstraZeneca, claiming that "lack of
adequate warnings rendered Pulmicort a defective or unreasonably dangerous

product.'"^^ The district court granted summary judgment to AstraZeneca,
finding that it could not be held liable for plaintiffs injuries under Indiana's
"learned intermediary" doctrine and because the warning accompanying
Pulmicort was adequate as a matter of law.'^^ Plaintiff appealed.

Because it agreed that the warning was adequate as a matter of law, the
Seventh Circuit did not address the learned intermediary basis for the district

court's decision. '^^ The Ziliak court recognized that in Indiana, "some products
such as pharmaceuticals are unavoidably unsafe in that they are incapable of
being made completely safe for their intended or ordinary use."'^^ The court also
pointed out that "'[sjuch a product, properly prepared, and accompanied by
proper directions and warnings, is not defective, nor is it unreasonably

dangerous. ""^^ Indeed, according to the Ziliak court:

103. Id. at 519. Plaintiffs physician was aware of the warnings and of the risks of using

Pulmicort to treat asthma. He prescribed Pulmicort because, in his view, the benefits of using the

drug outweighed the risks. Id.

104. Id

1 05. Id. Plaintiff originally filed her action in state court. AstraZeneca removed the case to

federal district court based upon diversity of citizenship. Id.

106. Id. In response to AstraZeneca's motion for summary judgment, plaintiff tendered an

affidavit from her purported medical expert. Plaintiffs expert opined that case reports and two

small studies convinced him that the risk ofglaucoma and cataracts, though small, should not have

been characterized in the warning as "rare." Id. He also concluded that the information given to

the physician about the side effects of glaucoma and cataracts was insufficient to warn him

adequately of the risk of those side effects. Id. at 520. He further concluded that

the information provided to the prescribing physician needs to state that there is a causal

relationship between the use of Pulmicort and development of cataracts and glaucoma,

that monitoring is necessary for development of these problems, and that cessation of

inhaled steroid use needs to be considered, as part of any therapeutic regimen.

Id. (quoting Dr. Donald Marks, medical expert witness). The district court found that the expert's

testimony "was inadequate because he had not sufficiently established his expertise." !d. Rather

than rejecting the testimony outright, however, the district court gave plaintiffthirty days to submit

additional affidavits establishing his qualifications. Id. The affidavits were not timely submitted.

Id. Without the expert's testimony, plaintiff had failed to identify any evidence suggesting that the

warnings were inadequate. Id. Even if the affidavit had been timely filed, the district court held

that the warning accompanying Pulmicort was consistent with what the warning should have said.

Id

107. /flf. at 520-21.

108. Id at 521 (citing Moss v. Crosman Corp., 136 F.2d 1 169, 1 171 (7th Cir. 1998)).

109. Id. (quoting Ortho Pharm. Corp. v. Chapman, 388 N.E.2d 541, 545-46 (Ind. Ct. App.

1979)).



266 INDIANA LAW REVIEW [Vol. 37: 1 247

The duty to provide adequate warnings arises only when the
manufacturer knows or should know ofa risk posed by the product, and,
in cases involving drugs available only by prescription, extends only to

the medical profession, not the consumer. ... A warning is adequate if
it is reasonable under the circumstances.

"°

With respect to the particular Pulmicort warning at issue, the court failed to

discern any inconsistency between how plaintiff contended AstraZeneca's
package insert should have read and how it actually read:

If a pharmaceutical manufacturer warns doctors that specific adverse

side effects are associated with the use ofa drug . . . and development of

potential side effects is implicit in the warning, as is the doctor's need

to monitor the patient and to consider alternative therapies. Here Ziliak

does not dispute that [her physician] was aware of AstraZeneca's
warnings, and that he took the risks that Ziliak would develop adverse

side effects into account when prescribing Pulmicort. Ziliak therefore
has not identified any evidence demonstrating the existence of a triable

question of fact whether the warnings accompanying Pulmicort were

inadequate.'"

Practitioners should be aware that the Ziliak opinion includes an assumption

about the applicability of strict liability that, although not ultimately relevant to

the court's decision, is contrary to the IPLA. In its review of Indiana law, the

court writes that, "manufacturers are strictly liable to consumers for injuries

caused by defective or unreasonably dangerous products placed in the stream of

commerce.'" '^ A few sentences later, the court again incorporates strict liability
into its analysis: "AstraZeneca is absolved of strict liability so long as it has

imparted adequate warnings to treating physicians.""^ In support of its

assumption about strict liability, the Ziliak court cites Indiana Code section 34-
20-2-1."'

Because Ziliak's cause of action accrued in November 1998, there is no
question that the case is governed by the current version ofthe IPLA, which was
enacted in 1 995. Although, as the Ziliak court recognized, it is true that the "rule

of liability" established by Indiana Code section 34-20-2-1 applies even though
a seller has exercised all reasonable care in the manufacture and preparation of

the product (the rule ofstrict liability), Indiana Code section 34-20-2-2 eliminates
the rule of liability without regard to reasonable care in all cases in which the
theory of liability is inadequate warnings or improper design stating:

[I]n an action based on an alleged design defect in the product or based

110. Id.

111. Id

112. /^y. (emphasis added).

113. M (emphasis added).
1 14. Id (citing IND. Code § 34-20-2-1 (1999)).



2004] PRODUCT LIABILITY 1267

on an alleged failure to provide adequate warnings or instructions
regarding the use of the product, the party making the claim must
establish that the manufacturer or seller failed to exercise reasonable

care under the circumstances in designing the product or in providing the

warnings or instructions."^

Many courts have recognized that the post- 1995 IPLA imposes a negligence
standard in design and warnings cases, while retaining strict liability (liability

despite the "exercise of all reasonable care") for manufacturing defect cases.
"^

Ziliak, however, does not stand alone among the recent opinions that rely upon
outdated authority to support the proposition that strict liability still applies in

cases in which the theory espoused to prove that a product is "unreasonably

dangerous" or "defective" is based upon improper design or inadequate

warnings."^

2. Design Defect Theory.—Indiana courts have required plaintiffs in design
cases to prove what practitioners and judges often refer to as a "feasible

alternative" design. Plaintiffs must demonstrate that another design not only

could have prevented the injury but that the alternative design was effective,
safer, more practicable, and more cost-effective than the one at issue. "^ Judge
Easterbrook has described that a design claim in Indiana is a "negligence claim,

subject to the understanding that negligence means failure to take precautions

that are less expensive than the net costs of the accident.""^

In Miller ex rel Miller v. Honeywell International, Inc.,^^^ plaintiffs were

victims of a helicopter crash involving an Army UH-1 "Huey" helicopter near
Camp Atterbury in 1 997.'^' They alleged that defective planetary gear within the
helicopter's engine fractured, causing the crash. '^^ They further argued that

115. IND. Code § 34-20-2-2.

116. See. e.g., Burt v. Makita USA, Inc., 212 F. Supp. 2d 893, 899-900 (N.D. Ind. 2002);

Kennedy v. Guess, Inc., 765 N.E.2d 213, 220 (Ind. Ct. App. 2002).

1 17. 5'eeSmockMaterialsHandlingCo.v.Kerr,719N.E.2d396(lnd.Ct. App. 1999)(finding

no error in the trial court's use of the term "strict liability" in its instructions to the jury in a case

that was not limited to manufacturing defects).

1 1 8. Burt, 2 1 2 F. Supp. 2d at 893; Whitted v. Gen. Motors Corp., 58 F.3d 1 200, 1 206 (7th Cir.

1995). In addition to the failure to warn theory in Burt, the Whitted case also involved a design

defect theory. The plaintiff in Burt was injured when a blade guard on a circular table saw struck

him in the eye after one of his co-workers left the guard in what appeared to be the installed

position. With respect to his design claims, plaintiff's expert suggested that the saw could be

designed so that the guard could be attached without tools or that the tools could be physically

attached to the saw. Burt, 212 F. Supp. 2d at 900. The court rejected the claim, holding that the

"plaintiff has wholly failed to show a feasible alternative design that would have reduced the risk

of injury." Id.

119. McMahon v. Bun-0-Matic Corp., 150 F.3d 651, 657 (7th Cir. 1998).

120. 2002 U.S. Dist. LEXIS 20478 (S.D. Ind. 2002).

121. IdalH-5.

122. Id at*53.



1268 INDIANA LAW REVIEW [Vol. 37:1247

defendant Honeywell International, Inc. ("Honeywell") was responsible for the

negligent design specifications for a "carrier assembly" that contained the gears

and that Honeywell owed them a post-sale duty to warn about an alleged
unreasonably dangerous alignment "defect" within the "carrier assembly."'

^^

Although Honeywell did not manufacture the planetary gears, plaintiffs

nevertheless argued that Honeywell was subject to liability as a manufacturer

because the actual manufacturer of the planetary gears, Precision Gear

("Precision"), manufactured the planetary gears in accordance with Honeywell's

drawings, design specifications and quality standards ("design specifications").
'^"^

Because Precision manufactured the planetary gears sometime before 1 977,'^^ the

court previously held that "any action for defects in the helicopter engine or the

carrier assembly that existed at the time of sale was barred" by the statute of
reposeJ ^^ Claims based upon the defective planetary gears, however, survived

the statute of repose because the carrier assembly at issue was overhauled in
1996, and the overhaul included new planetary gears.

'^^

Honeywell conveyed the design specifications to the Army in 1989.
Accordingly, the critical date that plaintiffs needed to use to establish

Honeywell's liability was 1989, the date when the design specifications were
placed "into the stream of commerce."'^^ The court concluded that Honeywell
was indeed a "manufacturer" under the IPLA because it defines "the term
'manufacturer,' in relevant part, as an 'entity who designs, assembles, fabricates
... or otherwise prepares a product or a component ofthe product before the sale

of the product to a user or consumer.
'"'^^

The court properly identified the standard for liability in design defect cases
as a negligence standard. '^° At a minimum, the court required that plaintiffs
establish that Honeywell's design specifications were flawed and unreasonably

dangerous in 1989.'^' The crux of plaintiffs' design defect claim charged that
Honeywell's design specifications were defective and unreasonably dangerous

because they allowed an inadequate carburization process. '^^ More specifically,
plaintiffs argued that Honeywell's heat treatment specifications did not conform

to the state-of-the-art in 1989 because another design not only could have

prevented the injury but that the alternative design was effective, safer, more
practicable, and more cost-effective than the one at issue. '" The court concluded
that plaintiffs' offensive use of a state-of-the-art argument failed because: (1)

123. Id. at *2-3.

124. Id. at *7-8.

125. Id at *6.

126. Id at 11-13.

127. Id at*7, *13-16.

128. Id at 62-63.

129. Id at *36 (quoting IND. Code § 34-6-2-77 (2002))
130. Id at *38.

131. Id at *65.

132. Id

133. Id at 66.



2004] PRODUCT LIABILITY 1269

plaintiffs' own expert testified that Honeywell's heat treatment specifications
were not unreasonably dangerous; and (2) although plaintiffs' expert repeatedly
testified about superior specifications that should have been used by Honeywell,

the record revealed that those specifications we not created until 1991 .'^"^ Thus,
the court held that "[Honeywell's] design specifications were not 'defective,' in
the sense required by [the IPLA] at the time those specifications were introduced
into the stream of commerce."

'^^

Vaughn v. Daniels Ca,'^^ discussed above in connection with the
"user/consumer" issue, is a case in which defendant Daniels Company
("Daniels") designed a coal preparation plant. A contractor constructed the
plant, including the assembly of three coal sumps according to Daniels'
blueprints and specifications. '^^ PlaintiffVaughn, an employee ofthe contractor,

was injured while installing one of the coal sumps into the coal preparation
plant. '^^ Vaughn climbed onto the sump without fastening his safety belt because
he was rushing to assist coworkers who were maneuvering a pipe through the
wall ofthe plant by a forklift and raising it to the level of the sump.'^^ Once the
pipe was raised, workers wrapped a chain around the pipe to support it as the
forklift pulled away.'"*^ The chain gave way, the pipe slipped, and Vaughn fell."^'

One of Daniels' arguments was that the sump was not "unreasonably
dangerous" or "defective" because it was not meant to serve as a construction
platform nor was Vaughn using the product for its intended purpose (to process
slurry).'"*^ Two professional engineers submitted affidavits in favor of Daniels,
both opining that the sump from which Vaughn fell was not unreasonably
dangerous when used for its intended purpose. '"^^ Both engineers opined that the
sump was typical of sump designs in coal preparation plants being constructed
throughout the country at the time ofVaughn's fall.

''''^ Vaughn's expert affidavit

responded that design flaws rendered the sump unreasonably dangerous because
it did not have a handrail around the top and because it did not have some sort of

134. Id. at*64-65.

135. Id at *71. Plaintiffs' also asserted a related failure to warn claim, contending that

Honeywell failed to warn the Army when it discovered that its heat treatment specifications, which

were a subpart ofthe design specifications, were inadequate. Id. The court relied upon its previous

analysis regarding plaintiffs' design defect claim, ultimately concluding that no duty to warn existed

because the plaintiffs failed to first establish that the design specifications were defective in 1989,

when they were sold to the Army. Id. at *74.

136. 117 ]<i.E2d \\\0 {\nd. Ct App. 2002), clarified on rehearing ISl'N.E.ld 1062(2003).

137. Id

138. Id

139. Id

140. Id

141. Id

142. /^. at 1128-29.

143. Id

144. Id at \\29.



1270 INDIANA LAW REVIEW [Vol. 37:1247

apparatus above from which the pipe could easily be safely hoisted.''*^

After agreeing that the legal conclusions in Vaughn's expert's affidavit

should be stricken, the Vaughn court reviewed remaining designated evidence

and held as follows:

[I]t is clear that we have two experts maintaining one position, namely
that the product was not being used for its intended purpose and is not
dangerous when used for the proper purpose. We also have one expert
taking the opposite stance, namely that there were design flaws in the

sump that rendered it out ofcompliance with accepted safety standards.
This contradiction is the classic question-of-fact scenario contemplated

by Trial Rule 56, which necessarily precludes summaryjudgment on this
issue."'

The Vaughn court reserved the "reasonably expected use" question for the
jury with respect to whether the sump was "defective" and "unreasonably
dangerous," yet none ofthejudges on the panel seemed to have any qualms about

making a nearly identical inquiry into "reasonably expected use" in the context
ofdeciding as a matter of law whether Vaughn was a "user" ofthe sump.'"*^ The
apparent justification for the difference in treatment is the presence of dueling

opinion affidavits.'"*^

It is interesting, however, to point out that at least one recent court

145. Id

146. Id

147. Id at 1127-29.

148. Id. at 1 128-29. In addition, Daniels argued that Vaughn misused the sump because he

was using it at a construction platform and that it was not being used, nor could it have been used

at the time at the time of the accident, for its intended purpose. Id. at 1 129. The court of appeals

concluded that the issue of unforeseeable misuse was one to be left the Jury. Id. at 1 130.

Practitioners should note the relationship between the "misuse" defense set forth in Indiana

Code section 34-20-6-4 and the language found in two other places within the IPLA, Indiana Code

§ 34-20-4-1(1) and Indiana Code § 34-20-4-3.

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

misuse of the 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.

IND. Code § 34-20-6-4 (1999). Indeed, the facts necessary to prove the defense of "misuse" at
times may be similar or identical to the facts necessary to prove either that the product is in a

condition not contemplated by reasonable users or consumers, id. § 34-20-4-l( 1 ), or that the injury

resulted from handling, preparation for use, or consumption that is not reasonably expectable, id.

§ 34-20-4-3, or both. Thus, in Indiana, there are at least three separate statutory standards that

might bar liability when injury results from a set of circumstances related to uses that are beyond

reasonable contemplation or expectation. See, e.g., Burt v. Makita USA, Inc., 212 F. Supp. 2d 893,

899-903 (N.D. Ind. 2002) (holding defendants were not liable because the manner in which the

injury occurred was not reasonably foreseeable as a matter of law; that being the case, the statutory

definition in Indiana Code section 34-20-4-1(1) had not been met and the defense of "misuse" in

Indiana Code section 34-20-6-4 had been established).



2004] PRODUCT LIABILITY 1 27

1

interpreting Indiana law decided the "defective" and "unreasonably dangerous"

issue as a matter of law in a design defect context even in the presence of
divergent expert testimony. In Burt v. Makita USA, Inc.,^^"^ the plaintiff was
injured when a blade guard on a circular table saw struck him in the eye after one
of his co-workers left the guard in what appeared to be in the installed position.
With respect to his design claims, plaintiffs expert opined that the saw was
"defective" and "unreasonably dangerous" by its design, suggesting that the saw
could be designed so that the guard could be attached without tools or that the

tools could be physically attached to the saw.'^° The court rejected the claim,
holding that the plaintiff and his expert had "wholly failed to show a feasible
alternative design that would have reduced the risk of injury."'^'

In Hughes v. Battenfeld Glouchester Engineering Co. '^^ plaintiff Hughes
injured his hand while separating and rethreading plastic film through a machine

called a secondary treater nip station ("nip station"), which defendant Battenfeld

Glouchester Engineering Co., Inc. ("Battenfeld") designed and manufactured.'^^

Hughes admitted that he knew about the dangers associated with using the nip
station because he observed co-workers who were injured performing similar
tasks.

'^"^ The task performed by Hughes at the time of incident required him to
manually route the plastic film into the machine between two driven roller

bars.'^^ Hughes testified that he was aware of the alleged defect that caused his
accident, and on two previous occasions he had filed written suggestions with his

employer requesting that it reduce the risk of injury involved.
'^^

Hughes filed suit against Battenfeld, alleging negligent design and

manufacture. Battenfeld moved for summary judgment. Judge Tinder first
recognized that to prevail on a claim under the IPLA, Hughes had to prove that

the product was in a defective condition that rendered it unreasonably

dangerous. '^^ "To be unreasonably dangerous, a defective condition must be

hidden or concealed . . . [and] evidence of the open and obvious nature of the

danger . . . negates a necessary element of the plaintiffs prima facie case that the

defect was hidden."'^^ Battenfeld argued that the dangerous condition ofthe nip
station was open and obvious.

'^^
Judge Tinder agreed and entered summary

judgment for Battenfeld, finding that the dangers of running the inside treatment

orders in the nip station were open and obvious as a matter of law.'^°

149. 212F. Supp. 2dat893.

150. Mat 900.
151. Id.

152. 2003 U.S. Dist. LEXIS 17177, at *1 (S.D. Ind. 2003).

153. /^. at*2-5.

154. Mat*4.

155. /^. at*2-3.

156. M at*3-4.
157. M at*7.
158. /f/. at*7.8.

159. Mat*7.

160. Idai*\l.



1272 INDIANA LAW REVIEW [Vol. 37:1247

Although decided a couple of months after the 2003 survey period expired,

the Indiana Supreme Court's decision in City of Gary v. Smith & Wesson
Corp.J^^ is noteworthy and is briefly summarized here. The City ofGary and its
mayor sued several handgun manufacturers, distributors, and retailers, alleging,
among other claims, negligent design, manufacture, distribution, and sale ofguns
with inadequate, incomplete, or nonexistent warnings regarding the risks ofharm.

The city alleged a separate design defect claim against the manufacturers for

failure to include adequate safety devices. The court ofappeals rejected all such
bases of 1 iabi 1 ity, holding that no duty ofcare existed between the parties because

the attenuated relationship between the city and the defendants rendered the

connection between the harm alleged by the city and the conduct of the

defendants tenuous and remote. '^^ The court concluded that the city simply was
not a reasonably foreseeable plaintiff injured in a reasonably foreseeable

manner.
'^^

The Indiana Supreme Court reversed, first concluding that the City's
allegations were sufficient to give rise to public nuisance and general negligence

claims.'^'* The City of Gary court also reversed with respect to the City's
negligent design claim against the manufacturers.'^^ The City contended that the

manufacturers

were negligent in designing the handguns in a manner such that the

defendants foresaw or should have foreseen that the products would pose

unreasonable risks of harm to the citizens ofGary who were unaware of
the dangers of a firearm or untrained in the use of handguns, or who are
minors or mentally impaired persons.

'^^

The City further alleged that the handguns were defective because they lacked

adequate safety devices including, but not limited to, devices that

prevent handguns from being fired by unauthorized users, devices

increasing the amount of pressure necessary to activate the trigger,

devices alerting the users that a round was in the chamber, devices that
prevent the firearm from firing when the magazine is removed, and
devices to inhibit unlawful use by prohibited or unauthorized users.

'^^

Although City of Gary recognized that the City is not a purchaser and has no
direct claim under "statutory or common law theories," the court nonetheless
concluded as follows:

161. 801 N.E.2d 1222 (Ind. 2003).

1 62. City ofGary v. Smith & Wesson Corp., 776 N.E.2d 368 (Ind. Ct. App. 2002), rev 'd, 801
N.E.2d. 1222 (Ind. 2003).

163. O/yo/Gary, '776N.E.2dat388.

164. O/y o/Gary, 801 N.E.2d at 1229-47.

165. /J. at 1248-49.

166. Mat 1247.
1 67. Id. The City also alleged that the manufacturers "knowingly and intentionally colluded

with each other to adhere to unsafe industry customs regarding the design of handguns." Id.



2004] PRODUCT LIABILITY 1273

[T]o the extent these actions constitute an unreasonable interference with

a public right, the City has alleged a claim for a public nuisance.

Whether these al leged design defects are unreasonable and the extent to
which they contribute to the harm alleged are matters for trial. Similarly,
the availability of relief appropriate to any unreasonable interference,
given that the defendant's products are lawful and the public has a right

to acquire them may present substantial obstacles to the City's claim. '^^

The court, therefore, held that "at th[e] pleading stage ... the City has stated a
claim for relief'"''

II. Limitations and Repose Issues

A. Statute ofLimitations

The IPLA provides, in relevant part, that "a product liability action must be
commenced within two (2) years after the cause of action accrues, or within ten
(10) years after the delivery of the product to the initial user or consumer.'"^^

Practitioners and judges alike generally refer to the first clause of that statute as

the statute of limitations and to the latter as the statute of repose.

The IPLA does not define the meaning of "accrues" for purposes of fixing
the two-year statute of limitations generally applicable to all product liability

actions in Indiana. Indiana courts nevertheless have adopted a discovery rule for

the accrual oftort-based damage claims caused by an allegedly defective product.
In Degussa Corp. v. Mullens,^^^ the Indiana Supreme Court held that the date
upon which a product liability claim accrues depends upon a subjective analysis

of a patient's communications with his or her doctor about when a causal link
between a disease and the defendant's product is established.'^^ "Once a

plaintiffs doctor expressly informs the plaintiff that there is a 'reasonable

possibility, if not a probability' that an injury was caused by an act or product,

then the statute of limitations begins to run and the issue may become a matter
oflaw.'"'^

When a doctor so informs a potential plaintiff, the plaintiff is deemed to
have sufficient information such that he or she should promptly seek

'additional medical or legal advice needed to resolve any remaining

uncertainty or confusion' regarding the cause of his or her injuries, and

therefore be able to file a claim within two years of being informed of a

reasonably possible or likely cause.
'^"^

168. Id. at 1248.

169. Id.

170. IND. CODE § 34-20-3- 1(b) (1999).

171. 744 N.E.2d 407, 410-11 (Ind. 2001).

172. Mat 410-11.
173. M. at 41 1 (quoting Van Dusen v. Stotts, 712 N.E.2d 491, 499 (Ind. 1999)).

174. Id (quoting Van Dusen, 111 N.E.2d at 499). In addition,



1274 INDIANA LAW REVIEW [Vol. 37:1247

In Dorman v. Osmose, Jnc.}''^ plaintiff Dorman injured his shin on a piece
of freshly-cut treated lumber on June 23, 1996. Dorman did not know at that
time that the wood had been treated with cromated copper arsenate ("CCA"). A
week after the accident, the injured area had become red, swollen, and infected.
On June 29, 1 996, Dorman's treating physician diagnosed him with cellulitis and
advised him that treated wood had "some nasty stuff in it.'^^ The physician
stopped short, however, of overtly linking the injury to any particular chemical

in the wood. At that time, Dorman believed that the wood had been treated with
salt.

More than a year later, in August 1997, Dorman's leg was reportedly
swollen, red, and painful. '^^ Another physician diagnosed Dorman with
"cellulitis with ascending lymphadenitis." The second physician did not connect
Dorman's condition to the treated wood. In December 1 999, Dorman approached
an attorney regarding his injury and claimed that he learned for the first time that

treated wood contained CCA.'^^ On May 5, 2000, Dorman consulted a third
physician, who issued a medical report concluding that the CCA in the treated
wood caused his injury. Dorman filed suit shortly thereafter on June 30, 2000.

Dorman filed suit based upon negligence and product liability theories. The

[a]n unexplained failure to seek additional information should not excuse a plaintiffs

failure to file a claim within the statutorily defined time period. Although "events short

of a doctor's diagnosis can provide a plaintiff with evidence ofa reasonable possibility

that another's" product caused his or her injuries, a plaintiffs mere suspicion or

speculation that another's product caused the injuries is insufficient to trigger the

statute.

Id. (citations omitted); see Barnes v. A.H. Robins Co., 476 N.E.2d 84, 87-88 (Ind. 1985) (stating

that a cause of action accrues when the claimant knew or should have discovered that he or she

"suffered an injury or impingement, and that it was caused by the product or act of another"); see

also Nelson A. Nettles, When Does a Product Liability Claim 'Accrue '? When Is It 'Filed'?, iND.

Law., May 9, 2001, at 23.
In Nelson v. Sandoz Pharmaceuticals Corp., 288 F.3d 954 (7th Cir. 2002), a case decided

during last year's survey period, the Seventh Circuit followed Degussa. In that case, the trial court

granted summary judgment to a pharmaceutical manufacturer based on the IPLA statute of

limitations. Id. at 958. After concluding that Indiana law applied, the Seventh Circuit reversed.

Id. at 965. The court first cited Degussa for the proposition that the statue of limitations runs from

the date that plaintiff knew or should have discovered that she suffered an injury or impingement

and that it was caused by the product or act of another. Id. at 966. According to the Seventh

Circuit, the plaintiffs suspicion, standing alone, was insufficient to trigger the limitations period.

Id. at 966-67. The court held that the period begins to run if a physician suggests reasonable

possibility, if not a probability, of a causal connection between the illness alleged and the product

involved. Id.

1 75. 782 N.E.2d 463 (Ind. Ct. App.), trans, denied, 792 N.E.2d 46 (Ind. 2003).

176. Mat 464-65.
177. Mat 465.
178. Id



2004] PRODUCT LIABILITY 1275

trial court granted summaryjudgment in favor ofthe defendants based upon the
IPLA's statute of limitations.'^^ Dorman appealed, and the court of appeals
reversed. In doing so, the Dorman court relied upon DeGussa, writing that
"[o]nce a plaintiffs doctor expressly informs the plaintiff that there is a

'reasonable possibility, if not a probability' that an injury was caused by an act
or product, then the statute of limitations begins to run and the issue may become
a matter of law.'"^° Noting that ''a plaintiff's mere suspicion or speculation that
another 's product caused the injuries is insufficient to trigger the statute[,Y^^^
the Dorman court concluded that Dorman's speculation about the connection
between his leg problem and the treated lumber was not enough to trigger the
limitations period as a matter of law."*^

In Detrex Chemical Industries, Inc. v. Skelton,^^^ the plaintiff began having

nosebleeds, chest congestion and breathing problems in December 1995. In
1996, plaintiff was diagnosed with chronic obstructive pulmonary disease
("COPD"), which was aggravated by his inhalation of fumes in the workplace.
The treating physician believed that plaintiffs disease was caused by asthma.'^"*
In spite of his doctor's diagnosis, plaintiff suspected that his health problem was
related to his workplace, and he began gathering information about the chemicals

he worked near. Also, in February 1996, plaintiff filed 2i pro se workers
compensation action based upon exposure to chemical fumes at work. Plaintiff

consulted with another physician in October 1996, and the second physician

tested for allergies and the presence of chemicals, and diagnosed plaintiff with

allergies, asthma and a poorly functioning immune system. In August 1997, the
second physician linked plaintiffs COPD with his chemical exposure. In
November 1 998, plaintiff visited another doctor who did not find a link between
plaintiffs health problems and his occupational chemical exposure. Finally, in

April 1999, plaintiff consulted another physician who concluded that plaintiffs
occupational chemical exposure "was most certainly responsible for [plaintiffs]

condition."'^^

In May of 1999, plaintiff filed his complaint. Thereafter, defendants filed
motions for summary judgment based upon the statute of limitations. The trial
court denied the defendants' motions, defendants appealed, and the appellate

panel affirmed. '^^ Just as was the case in Dorman, the court began its substantive
discussion with Degussa: "[W]hile events short of a doctor's diagnosis can

provide a plaintiffwith evidence ofa reasonable possibility that a product caused

his or her injuries, a plaintiffs mere suspicion or speculation that the product

179. /^. at 464.

180. Id. at 467 (quoting DeGussa Corp. v. Mullens, 744 N.E.2d 407, 410-1 1 (Ind. 2001)).

181. M (emphasis in original).
182. M 469-70.
183. 789N.E.2d75(Ind. Ct. App. 2003).

184. Id

185. Id Sit 17.

186. Mat 77, 80.



1276 INDIANA LAW REVIEW [Vol. 37:1247

caused the injuries is insufficient to trigger the statute.'"^^ Defendants argued

that, as early as April 3, 1997, plaintiff should have known that there was a
reasonable possibility, ifnot probability that his health problems had been caused

by chemicals. '^^ However, the court noted that during that same period oftime,
plaintiff heard from other doctors that his condition was not from occupational
chemical exposure, and plaintiffalso was advised that he had various allergies.'*^
Despite the evidence that plaintiff had begun taking precautions to protect

himselffrom chemical exposure at work in 1 995 and 1 996, the Detrex panel held
that the limitations period did not begin to run at that time.'^^ The conflicting
evidence related to plaintiffs health condition caused the court to hold that

"whether the statute of limitations had run on [plaintiffs] claim is a question of

fact for resolution at trial.'"''

Although the Indiana Supreme Court in Degussa advises that factors short
ofa physician's diagnostic causal link between the defendant and the injury may
trigger the IPLA's limitations period,''^ Indiana appellate courts during this

survey period have been noticeably reluctant to find anything short ofjust such

a diagnostic connection sufficient to trigger it.

B. Statute ofRepose

Indiana Code section 34-20-3-1 provides, in relevant part, that "a product
liability action must be commenced within . . . ten (10) years after the delivery
of the product to the initial user or consumer.'"'^ The statute of repose gets a
little more complicated in the last two years of the 10-year period mentioned

above. Indiana Code section 34-20-3-1 (b) 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.'"'"^ Practitioners should be wary here in light of some
very specific statutory language. Note that subsection (b) grants the full two-year

limitations period after accrual if the cause of action accrues at least eight years

but less than ten years after initial delivery. If accrual occurs ten years to the day

after the initial delivery, it would appear as though suit must be filed that day
because the additional two-year period only applies if accrual occurs at any time

less than ten years after initial delivery.

Recent case law confirms that there are at least two situations in which a
manufacturer can be liable even beyond ten years after delivery to the initial user

or consumer: (1) when the manufacturer supplies replacement parts for the

187. Id. at 78.

188. Id. at 79.

189. Id

190. /^. at 79-80.

191. Id at 80.

192. DeGussaCorp. v. Mullens, 744 N.E.2d 407, 411 (Ind. 2001).

193. Ind. Code § 34-20-3-l(b) (1998).

194. Id



2004] PRODUCT LIABILITY 1277

product and the replacement parts are the cause ofthe plaintiffs' injury; and (2)
when the manufacturer rebuilds the product, such that the rebuild significantly
extends the life of the product and thereby renders it in like-new condition.

The Indiana Supreme Court has recognized the utility and underlying policy
justifications for the existence of a statute of repose, and has reaffirmed that the

wisdom ofthe policy underlying a product liability statute ofrepose is a question
for the legislature. ^^^ Moreover, the Indiana Supreme Court in Mcintosh v.
Melroe Co.,'^^ has held that application of the statute of repose does not violate
article I, sections 12 or 23 of the Indiana Constitution.'^^

Product liability cases involving asbestos products are unique in several

ways, including the manner by which the Indiana General Assembly chose to
handle the repose period that applies to them. Indiana Code section 34-20-3-
2(a)'^^ 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. '"^^ That exception applies, however,

"only to product liability actions against persons who mined and sold commercial
asbestos; and (2) to funds that have, as a result of bankruptcy proceedings or to

avoid bankruptcy proceedings, been created for the payment of asbestos related

disease claims or asbestos related property damage claims."^°°

The phrase "persons who mined and sold commercial asbestos"^^' had been
a source ofcontroversy for several years. Plaintiffs argued that the "and" should

be read as an "or." Many defendants, on the other hand, have contended that
Indiana Code section 34-20-3-2 creates an exception to the limitations and repose
periods only for claims against those entities that both mined and sold
commercial asbestos, and that the term "commercial" has a very specific

meaning. Until March 25, 2003, when the Indiana Supreme Court issued a much-

195. Shebel v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275, 278 (Ind. 1999).

1 96. 729 N.E.2d 972 (Ind. 2000).

197. During last year's survey period, the U.S. Court of Appeals for the Seventh Circuit

recognized and applied Mcintosh in Land v. Yamaha Motor Corp., 272 F.3d 514 (7th Cir. 2001),

a case in which the court concluded that the statute of repose cannot be circumvented by claiming

that the manufacturer continued its negligence after the initial sale by failing to warn customers of

known dangers and that post-sale failure-to-warn claims merge with the underlying product liability

claims that are barred, in their entirety, by the statute of repose. Id. at 518. In response to an

argument that the statute of repose was unconstitutional, the Seventh Circuit also noted that

Mcintosh already had conclusively addressed that issue. Id.

198. IND. Code § 34-20-3-2(a) (1998) (amending id § 33-1-1.5-5.5).

199. Id. 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," id. § 34-20-3-2(b), and that

the "subsequent development of an additional asbestos related disease or injury is a separate cause

of action." Id § 34-20-3-2(a).

200. /^. § 34-20-3-2(d).

201. Id



1278 INDIANA LAW REVIEW [Vol. 37:1247

anticipated decision mAlliedSignal Inc. v. O//,^^^ various Indiana appellate courts

answered those questions in divergent ways, most in favor of plaintiffs.

The string of appellate decisions preceding Ott began in 1989, shortly after
the General Assembly approved what is now Indiana Code section 34-20-3-2.
In Covalt V. Carey Canada, Inc.^^^ the majority held that the statutory language
now appearing in Indiana Code section 34-20-3-1 did not apply "to cases
involving protracted exposure to an inherently dangerous foreign substance [that]

is visited into the body."^^"* While the Covalt court was deliberating its decision,
the General Assembly approved the language for what is now Indiana Code
section 34-20-3-2.2°'

In 200 1 and early 2002, majorities of six separate panels ofthe Indiana Court

of Appeals in Black v. ACandS, Inc.,^^^ Poirier v. A. P. Green Services, Inc.^^^
Fulkv. AlliedSignal, Inc.^^^ Parks v. A. P. Green Industries, Inc.,^^^ AlliedSignal,
Inc. V. Herring,^^^ and Harris v. ACandS, Inc.,^^^ held that Indiana Code
section 34-20-3-2's exception to the IPLA repose period applies to entities that
mined commercial asbestos, even if they did not sell it, and to entities that sold
commercial asbestos, even if they did not mine it. Each of those cases involved

workers or their estates who claimed injury or death as the result ofworking with

202. 785 N.E.2d 1068 (Ind. 2003).

203. 543 N.E.2d 382 (Ind. 1989).

204. Id at 385.

205. Id. at 383 n. 1 . Nine years after Covalt, the repose issue in asbestos cases returned to the

fore. Roberts v. ACandS, Inc, 1998 U.S. Dist. LEXIS 22635, at *12-13 (S.D. Ind. 1998). Judge

Larry McKinney of the United States District Court for the Southern District of Indiana held that

section 1 barred claims made against a manufacturer ofan asbestos-containing product that accrued

more than ten years after the delivery of the product to its initial user and consumer. In doing so,

.ludge McKinney determined that what is now chapter 3, section 2 applied only to entities that both

mined and sold commercial asbestos. Id. Less than a year later, the Indiana Court of Appeals in

Sears Roebuck and Co. v. Noppert, 705 N.E.2d 1065, 1068 (Ind. Ct. App. 1999), reached the same

conclusion as part of a larger discussion about the timeliness of a post-judgment motion filed

pursuant to Rule 60(B) of the Indiana Rules of Trial Procedure: "[W]hile courts in Indiana have

on occasion construed an 'and' in a statute to be an 'or,' we find that there is no ambiguity in this

statute requiring such an interpretation." Id. In Novicki v. Rapid-American Corp., 707 N.E.2d 322

(Ind. Ct. App. 1 999), another panel ofthe court ofappeals, citing Noppert, recognized that chapter

3, section 2's exception to the statute of repose applied only to entities that both mined and sold

commercial asbestos. Id.

206. 752 N.E.2d 148, 162 (Ind. Ct. App. 2001), vacated and remanded by Black v. ACandS,

Inc., 785 N.E.2d 1084 (Ind. 2003).

207. 754 N.E.2d 1007, 1012 (Ind. Ct. App. 2001).

208. 755 N.E.2d 1198, 1206 (Ind. Ct. App. 2001).

209. 754N.E.2d 1052, 1061 (Ind. Ct. App. 2001).

210. 757N.E.2d 1030, \037 (Ind.Ct. App.200\),vacatedandremandedbyA\l'iedSignal\nc.

V. Herring, 785 N.E.2d 1090 (Ind. 2003).

211. 766N.E.2d 383 (Ind. Ct. App. 2002), vacated and remanded by Hdirris v. ACandS, Inc.,

785N.E.2d 1087 (Ind. 2003).



2004] PRODUCT LIABILITY 1279

or around asbestos-containing products. The claimants sued sellers ofasbestos-
containing products, alleging damages caused by inhalation ofasbestos dust. The
following language from the majority opinion in 5/(3c^ provides the underpinning

for the rulings:

Clearly, the intent of the legislature in enacting [Indiana Code
section 34-20-3-2] was at least in part to acknowledge the long latency
period of asbestos-related injuries. Without the [Indiana Code
section 34-20-3-2] exception, the statute of limitations and statute of

repose would be meaningless for the vast majority of people harmed by

exposure to asbestos. Asbestos-related injuries would truly be a wrong
without a remedy. Equally clear is that the legislature thus could not

have intended by enacting [Indiana Code section 34-20-3-2] to so
severely limit the means of recovery.^

'^

Judge Mathias wrote a lengthy dissenting opinion in Blacky concluding that

the statute of repose on its face is unambiguous and clearly applies only to those

companies who both mined and sold commercial asbestos, not all sellers of
asbestos-containing products.^'^

In Jurich v. Garlock, Inc.,^^^ yet another panel of the court of appeals

weighed in. Although the Jurich court recognized the Black majority's

conclusion as "reasonable," it disagreed that the defendants sold "commercial

asbestos.
"^'^ The Jurich court determined that the defendants sold asbestos-

containing products, not "commercial asbestos," which referred to either raw or

processed asbestos that is incorporated into other products.^ '^ The Jurich court
went on, however, to conclude that the application of Indiana Code section 34-
20-3-1 to the plaintiff under the facts presented in the case violated article I,

section 12 of the Indiana Constitution.^'^

The Ott case involved a direct appeal from the Allen County Superior Court.
The trial court issued an order denying motions for summaryjudgment based on
the statute of repose. The defendants that filed those motions argued that they
had not mined and sold commercial asbestos.^'^ The trial court, citing Noppert,
first concluded that Indiana Code section 34-20-3-2's exception did not apply to
the moving defendants. The trial court, however, went on to conclude that
Indiana Code section 34-20-3-1 , as applied to Mrs. Ott, violated article I, section
1 2 and article I, section 23 of the Indiana Constitution. The trial judge certified
his orders for interlocutory appeal.^ '^ Because of the conflicting opinions ofthe

court of appeals, the moving defendants petitioned the Indiana Supreme Court

212. Black v. ACandS, Inc., 752 N.E.2d 148, 152 (Ind. Ct. App. 2001).

213. /c/. at 158 (Mathias, J., dissenting).

214. 759N.E.2d 1066 (Ind. Ct. App. 2001).

215. Mat 1069-70.
216. Id

217. Id at 1077.

218. AiliedSignal, Inc. v. Ott, 785 N.E.2d 1068 (Ind. 2003).

219. Id



1280 INDIANA LAW REVIEW [Vol. 37:1247

for emergency transfer to resolve the conflict.^^°

The 3-2 majority in Ott held that Indiana Code section 34-20-3-1 bars claims
against manufacturers that did not sell bulk asbestos fiber for asbestos-related

injuries accruing more than ten years after the initial delivery.^^' In doing so, the
court concluded that the asbestos-specific "discovery rule" exception to the ten-

year repose period^^^ does not apply to manufacturers that did not sell bulk

asbestos fiber.^^^ The Ott court also held that application of the ten-year statute
ofrepose does not violate "due process" guarantees provided by article I, section
23 ofthe Indiana Constitution.^^"* The court, however, left open pending further
factual findings whether, as applied, the statute of repose violates article I,

section 12 of the Indiana Constitution.^^^

220. On November 16, 2001 , the Indiana Supreme Court accepted the petition and held oral

argument on May 16, 2002.

221. O/r, 785N.E.2datl073.

222. IND. Code § 34-20-3-2 (1998) (formerly id. § 33-1-1.5-5.5).

223. O/r, 785N.E.2datl073.

224. Id. at 1075-77. Article I, section 23 ofthe Indiana Constitution provides: "The General

Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon

the same terms, shall no equally belong to all citizens." iND. CONST, art. I, § 23. Before it could

apply the Collins v. Day, 644 N.E.2d 72 (Ind. 1994), analysis, the Ott majority concluded that it

first had to determine what legislative classification was at issue. Ott, 785 N.E.2d at 1077. It

defined the classification at issue as "asbestos victims in Indiana are bound by the statute ofrepose

governing product liability actions when suing particular categories of defendants but are not so

constrained when suing others. Thus, the statute creates a distinction between asbestos victims and

other victims under the product liability act." Id. The Ott majority concluded that because the

distinction worked in favor ofasbestos plaintiffs, the distinction is constitutionally permissible. Id.

(quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347-48 ( 1 936)) ("The Court will not pass

upon the validity of a statute upon complaint of one who fails to show that he is injured by its

operation."). In a footnote, the Ott majority addressed an issue raised by amicus regarding whether

or not Indiana Code section 34-20-3-2 was unconstitutional as applied to miners stating that

because "such a claim does not impact any party in the present case, we will not address [Indiana

Code section 34-20-3-2] 's constitutionality as applied to miners at this time." Id. The court's

footnote raises other additional questions. Is Indiana Code section 34-20-3-2 facially

unconstitutional? If deemed unconstitutional, how would that affect asbestos plaintiffs given the

language in Indiana Code section 34-20-3-2(e) that indicates that if any portion of it is deemed

unconstitutional, all of it would be stricken?

225. Ott, 785 N.E.2d at 1077. Article I, section 12 ofthe Indiana Constitution provides: "All

courts shall be open; and every person, for injury done to him in his person, property, or reputation,

Shall have remedy by due course of law." Ind. Const, art. I, § 12. The Ott majority began its

constitutional analysis with a lengthy quote from Martin v. Richey, 71 1 N.E.2d 1273 (Ind. 1999),

a case holding that article I, section 1 2 precludes the application ofa two-year medical malpractice

statute of limitations when a plaintiff has no meaningful opportunity to file an otherwise valid tort

claim with in the specified statutory period, because, given the nature ofthe asserted malpractice and

the resulting injury or medical condition, he is unable to discover that he has a cause of action. The

Ott majority determined that when evaluating Indiana Code section 34-20-3-1 under article I,



2004] PRODUCT LIABILITY 1 28

1

Justice Dickson, in a dissenting opinionjoined by Justice Rucker, challenged

each of the conclusions reached by the majority.^^^ Justice Dickson relied

heavily on Black for his reasoning challenging the interpretation ofIndiana Code
section 34-20-3-2.^^'

The O^/ decision, in practical effect, reversed the Or/ trial court and overruled
Black, Poirier, Fulk, Parks, Herring, and Harris to the extent that those decisions

interpreted Indiana Code section 34-20-3-2 to apply to manufacturers of all
products that contained asbestos. It also overruled Jurich with respect to the

article I, section 23 issue, and rejected much of theJi/Wc/z analysis with respect
to the article 1, section 12 issue. In addition, the Ott majority overruled Covalt

to the extent any inconsistencies existed between the two decisions.

We stated in Covalt Xhdii the applicability of the holding in that case was
limited to "the precise factual pattern presented," which involved

exposure to raw asbestos fibers. . . . Thus Covalt can be read as
consistent with the effect of [Indiana Code section 34-20-3-2] in that it
relieved asbestos plaintiffs from the statue of repose in a lawsuit against

section 12, the key question is when the injury occurred. Ott, 785 N.E.2d at 1074.

The Indiana Supreme Court considered several factual scenarios in evaluating the application

of Indiana Code section 34-20-3-1. First, it considered a scenario where a plaintiff had been

exposed to asbestos fibers from a product more than ten years after the product had been delivered

to its initial user or consumer and concluded that Mcintosh would apply to bar the claim. Id. The

majority next addressed a scenario where a plaintiff "is injured by a product within ten years of its

initial delivery, but who has neither knowledge of nor any ability to know of that injury until more

than ten years have passed," concluding that such a scenario implicated Richey. Id. The Ott

majority determined that a cause of action "accrues" when "the disease has actually manifested

itself." Id. at 1075. In reaching this definition, the Ott majority acknowledged that "it is difficult

to reconcile science and law," noting that injury "does not occur upon mere exposure to (or

inhalation of) asbestos fibers" but that "injury may well occur before the time that it is discovered."

Id. The Ott majority then concluded that Indiana Code section 34-20-3-1 ''might be

unconstitutional as applied to the plaintiff if a reasonably experienced physician could have

diagnosed Jerome Ott with an asbestos-related illness or disease within the ten-year statute of

repose, yet Ott had no reason to know of the diagnosable condition until the ten-year period had

expired." Id. (emphasis added). Because the record had not been developed to address that issue,

the case was remanded to the trial court for further proceedings. Id.

226. Id. at 1078-84 (Dickson, J., dissenting) (challenging the definition of "commercial

asbestos," the failure to substitute "or" for "and" in Indiana Code section 34-20-3-2, the article I,

section 12 analysis, and the article I, section 23 analysis).

227. Id. at 1080-81 (Dickson, J., dissenting). Indeed, Justice Dickson cites Black for the

proposition that

[bjecause the statute of repose is concerned not with the introduction of the asbestos

into the marketplace but with exposure to the hazardous foreign substance that causes

disease, an interpretation ofthe statute that permits or denies recovery based solely on

the nature of the entity that introduced the asbestos into the marketplace cannot stand.

Id (citing Black v. ACandS, 752 N.E.2d 148, 154 (Ind. Ct. App. 2001)).



1282 INDIANA LAW REVIEW [Vol. 37:1247

a supplier of commercial asbestos.^^^

III. Defenses

A. Use with Knowledge ofDanger (Incurred Risk)

Indiana Code section 34-20-6-3 provides that "[i]t 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."^^^ Incurred risk is a
defense that "involves a mental state ofventurousness on the part ofthe actor and

demands a subjective analysis into the actor's actual knowledge and voluntary
acceptance of the risk."^^° At least one Indiana court has held in the summary
judgment context that application ofthe incurred risk defense requires evidence
without conflict from which the sole inference "to be drawn is that the plaintiff
had actual knowledge of the specific risk and understood and appreciated that
risk.""''

In Vaughn v. Daniels Co,^^^ discussed above in connection with the
"user/consumer" and the "unreasonably dangerous" issues, defendant Daniels

Company ("Daniels") designed a coal preparation plant. A contractor
constructed the plant, including the assembly of three coal sumps according to
Daniels' blueprints and specifications. Plaintiff Vaughn, an employee of the

contractor, was injured while installing one of the coal sumps into the coal
preparation plant.^^^ In an effort to aid his co-workers in installation, Vaughn
climbed onto the sump without his safety belt while a pipe was maneuvered
through the wall of the plant by a forklift and raised to the level of the sump.

228. Id. at 1077.

229. IND. CODE §34-20-6-3 (1998).

230. Cole V. Lantis Corp., 714 N.E.2d 194, 200 (Ind. Ct. App. 1999).

23 1 . Id. Indiana courts have decided some important incurred risk cases in the last few years.

E.g., Smock Materials Handling Co. v. Kerr, 719N.E.2d 396 (Ind. Ct. App. 1999) (finding no basis

for the incurred risk defense under the facts of that case; plaintiff had no knowledge ofthe fact that

the manufacturer had changed the design of the lift so as to eliminate pins that would have

prevented rods from falling unexpectedly from the lift cups underneath the lift platform); Hopper

V. Carey, 716 N.E.2d 566 (Ind. Ct. App. 1999) (because the plaintiffs did not adequately specify

the basis of their claim, the court was unclear whether the defect in the fire truck was open and

obvious or whether warnings were placed on the truck informing the passengers ofthe specific risk

from which the Hoppers' injuries resulted, and the court was unable to determine the applicability

of the incurred risk defense); Cole v. Lantis Corp., 714 N.E.2d 194 (Ind. Ct. App. 1999) (because

plaintiffs job necessarily entailed moving containers across gap between aircraft and aircraft

loading equipment and his apparent belief that he had to somehow find a way to work around the

known danger posed by the gap, the majority concluded that whether plaintiffvoluntarily incurred

the risk of falling through the gap was a fact question for the jury's resolution).

232. 777 N.E.2d 1110 (Ind. Ct. App. 2002), clarified on rehearing 1%1 N.E.2d 1062.

233. Id at 11 16.



2004] PRODUCT LIABILITY 1283

After raising the pipe, workers wrapped a chain around the pipe to support it as

the forklift pulled away. The chain gave way, the pipe slipped, and Vaughn

One of Daniels' arguments was that Vaughn knew and appreciated the risk
of falling and failed to take proper precautions despite his knowledge. It was
undisputed that Vaughn understood and appreciated the risks of working at
heights and the need to wear a safety belt. He was, in fact, wearing his belt until
moments before the accident, but he did not put it back on before rushing to the
sump to assist his co-worker."^^^ The trial court agreed, finding that Vaughn
"knew and appreciated the risk of falling that came with not being properly
[fastened] while working at heights and despite his knowledge and appreciation

of this risk, failed to take proper safety precautions.
"^^^

Vaughn countered that his failure to wear his safety belt was not voluntary
under the circumstances because he was rushing to help his co-workers who
needed assistance. Thus, Vaughn argued that "although he knew ofthe general
risks of working at heights without wearing a safety belt, his failure to do so in

this case was reasonable because of the need to help his co-workers."^^^ In
addition, Vaughn pointed to his deposition testimony in which he stated that he
had no place to fasten his safety belt while working on the sump at issue and that
there had been a handrail around another sump he had previously installed onto
which he could fasten the belt.

Focusing on the phrase "actual knowledge ofthe specific risk" and taking its

cue from Ferguson v. Modern Farm Systems, Inc.,^^^ the court reasoned as
follows:

It is true that the undisputed designated evidence is that Vaughn
understood the danger of working at heights over six feet without a

safety belt and yet climbed to the top of the sump to install the pipe
without wearing it or tying off . . . That being said, however, there

remains a question concerning the voluntariness of the failure to wear

the belt given the urgent need of the coworkers for help. There is also

the risk of working on the sump without a handrail as a result of the
allegedly defective design. There remain questions as to whether

Vaughn was fully aware that the sump had no handrail before he went
up the ladder and that he fully understood the risk of being on the sump
without a handrail such that he really could have voluntarily undertaken

the task of installing the pipe even in spite of the danger.^^^

Accordingly, the Vaughn court held that questions of fact existed "relating to
whether Vaughn incurred the risk, and, therefore, summary judgment is not

234. Id.

235. Id. at 1132.

236. Id at 1131.

237. /^. at 1132.

238. 555 N.E.2d 1379 (Ind. Ct. App. 1990).

239. Vaughn, 111 N.E.2d at 1 132.



1284 INDIANA LAW REVIEW [Vol. 37:1247

appropriate.^'*^

It is important to note here that, in discussing the incurred risk defense, the

Vaughn court wrote that Indiana Code section 34-20-6-3 "provides a complete
defense where a plaintiff incurs the risks associated with the use ofa product."^"*'

The use ofthe term "complete" is not insignificant. A "complete" defense in this
context is one that, ifthe requirements to establish it are met, relieves a defendant

of liability and automatically eliminates any need for fault allocation. Incurred

risk, misuse, and alteration/modification were "complete" defenses to IPLA
claims before the 1995 amendments.

^'*^

As the Vaughn court seems to have recognized, incurred risk should remain
a complete defense. When the General Assembly amended in 1 995 what is now
Indiana Code section 34-20-6-3(3), it eliminated the word "unreasonably" from
the phrase that previously read "nevertheless proceeded 'unreasonably' to make
use of the product." The language choice tends to support the proposition that
incurred risk is not subject to fault apportionment. In addition, and perhaps even

more compelling, is the fact that the definition of "fault" for cases governed by
the Comparative Fault Act includes a plaintiffs assumed or incurred risk,

whereas the definition of"fault" for purposes ofthe IPLA does not.^'*^ It follows,
therefore, that an IPLA plaintiffs incurred risk, because it is not "fault" under
the IPLA, should not be subject to fault apportionment.

In addition to Vaughn, the opinion by the court ofappeals in Hopper v. Carey
provides support for the proposition that incurred risk remains a complete

defense in Indiana.^"*"*

240. Id.

24 \. M at 11 30 (emphasis added).
242. E.g., Estrada V. SchmutzMfg. Co., 734 F.2d 1218 (7th Cir. 1 984) (misuse); Foley v. Case

Corp., 884 F. Supp. 313 (S.D. Ind. 1994) (modification/alteration); Perdue Farms, Inc. v. Pryor,

646 N.E.2d 715 (Ind. Ct. App. 1995) (incurred risk).

243 . Indiana Code section 34-6-2-45(b) defines "fault" for cases governed by the Comparative

Fault Act and includes within that definition the "unreasonable assumption of risk not constituting

an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to

mitigate damages." iND. Code § 6-2-45(b) (1999). Indiana Code section 34-6-2-45(a) defines

"fault" for cases governed by the IPLA, and, although it tracks the definition in section (b) closely,

conspicuously eliminates any reference to assumption of risk and incurred risk. "Fault" for

purposes of the IPLA means:

[A]n act or omission that is negligent, willful, wanton, reckless, or intentional toward

the person or property of others. The term includes . . . [ujnreasonable failure to avoid

an injury or to mitigate damages and [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.

Id. § 34-6-2-45(a).

244. 716 N.E.2d 566, 576 (Ind. Ct. App. 1999) (quoting Koske v. Townsend Eng'g Co., 551

N.E.2d 437, 441 (Ind. 1990)) ("'[Elven if a product is sold in a defective condition unreasonably

dangerous, recovery will be denied an injured plaintiffwho had actual knowledge and appreciation

of the specific danger and voluntarily accepted the risk.'") (emphasis added).



2004] PRODUCT LIABILITY 1285

B. Misuse

Indiana Code section 34-20-6-4 provides that "[i]t is a defense to an action
under [the IPLA] that a cause ofthe physical harm is a misuse of the 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."^"*^

Knowledge of a product's defect is not an essential element of establishing the
misuse defense.

As noted above, the facts necessary to prove the defense of "misuse" many
times will be similar or identical to the facts necessary to prove either that the

product is in a condition not contemplated by reasonable users or consumers^"*^

or the injury resulted from handling, preparation for use, or consumption that is

not reasonably expectable,^"*^ or both. Thus, in Indiana there are at least three

separate statutory standards that might bar liability when injury results from a set
of circumstances related to uses that are not reasonably expectable or

foreseeable.
^"^^

Misuse also was an issue in the Vaughn case discussed at length earlier in

this survey.^"^^ The trial court found that even if the coal sump could be
considered a product, Vaughn's injuries "were caused by his misuse ofthe sump,

because he knew of and appreciated the risk of falling when working at heights,
but failed to use the sump in a foreseeable manner."^^° The trial court also found
that Vaughn misused the sump to the extent that it was not foreseeable for
Daniels to expect that Vaughn would "*fail to [properly secure himself] when
working at heights and for a bolt to 'foul' in the steel of the pipe [Vaughn] was
attempting to maneuver into place. "'^^' Daniels pointed to evidence in the record

245. IND. Code §34-20-6-4 (1999).

246. See id. §34-20-4-1(1).

247. See id. § 34-20-4-3.

248. Burt v. Makita USA, Inc., 212 F. Supp. 2d 893 (N.D. Ind. 2002), illustrates how a set of

facts can be analyzed to deny recovery using Indiana Code section 34-20-4-1(1), Indiana Code

section 34-20-4-3, or Indiana Code section 34-20-6-4. Recall that the Burt case is the one in which

the plaintiff was injured by a circular saw's blade guard. The district court held that there was

no evidence that the defendants should have foreseen that someone would leave the

blade guard in an incompletely installed position, or that someone would attempt to use

the saw with the blade guard improperly attached. To the contrary, the evidence

suggest[ed] that the accident was unforeseeable, caused by a very unusual set of factual

circumstances.

Burt, 212 F. Supp. 2d at 898. Accordingly, the defendants were not liable because the manner in

which the injury occurred was not reasonably foreseeable as a matter of law. Id. That being the

case, the statutory definition in Indiana Code § 34-20-4-1(1) had not been met and the defense of

"misuse" in Indiana Code § 34-20-6-4 had been established. Id.

249. 777 N.E.2d 1110 (Ind. Ct. App. 2002).

250. Id at 1129.

251. Id. at 1130 (quoting Appellant Br.).



1 286 INDIANA LAW REVIEW [Vol. 37: 1 247

confirming that the coal sump at issue was typical ofsump designs being utilized
in Indiana and across the country, that the purpose of such a sump was to provide
a feed to the heavy media cyclone pump, that Vaughn was not using the sump for
its intended use at the time he was injured, and that the sump was not capable of
being operated for its intended purpose during installation at the time when
Vaughn was injured.^^^

Vaughn countered by arguing that "the mere fact the blueprints show that a
ladder allowed access into the sump means that he was using the sump in a
foreseeable manner."^^^ Vaughn also pointed to his own deposition to the effect
that other sites utilizing sumps had steel overhead from which hangers could be
used to hold the pipe during installation. Vaughn's expert added that "'The
design of the facility to house the heavy media sump did not include a beam to
suspend a chain hoist to afford safe assembly and maintenance disassembly of

heavy and long pipe components' . . . ."^^"^

The court ofappeals reversed the trial court's misuse decision on these facts,
concluding that an issue of fact existed with respect to misuse:

Although we are of the opinion that it was foreseeable that workers
would be on the sump based on the presence of the ladder, there is
conflicting evidence as to the manner in which the pipe was being
installed while Vaughn and the other workers were on the top of the
sump and whether such use constituted misuse.^^^

Another misuse case is Barnard v. Saturn Corp.^^^ a wrongful death action
against the manufacturers of an automobile and its lift jack.^^^ Plaintiffs

decedent was killed when he used a lift jack to prop up his vehicle while he
changed the oil. Thejack gave way, trapping the decedent underneath the car.^^^
Both manufacturers provided safety warnings regarding proper use of the jack

that the decedent did not follow.^^^ For example, the decedent failed to block the

tires while he used the jack, he used the jack when the vehicle was not on a flat
surface, and he got underneath his vehicle while it was raised on the jack—all of
these actions were contrary to the warnings provided by the manufacturers.^^^

The trial court granted summaryjudgment to the defendants based upon product
misuse, and the Estate appealed.

The Barnard court first concluded that product misuse is not a complete bar
to recovery in an action brought pursuant to the IPLA: "[W]e believe that the
defense of misuse should be compared with all other fault in a case and does not

252. /^. at 1129-30.

253. Id.

254. Id.

255. Id

256. 790 N.E.2d 1023 (Ind. Ct. App. 2003).

257. Mat 1026-27.
258. Id

259. Id 1026.

260. Id at 1030.



2004] PRODUCT LIABILITY 1287

act as a complete bar to recovery in a products liability action."^^' The Barnard
court determined that the 1995 Amendments to the IPLA required all fauh in
cases to be comparatively assessed.^^^ "By specifically directing the jury to
compare all 'fault' in a case, we believe that the legislature intended the defense
of misuse to be included in the comparative fault scheme."^^^ Notwithstanding

that conclusion, the Barnard court ultimately affirmed the grant of summary
judgment, holding as a matter of law that "no reasonable trier of fact could find

that [the Decedent] was less than fifty percent at fault for his injuries."^^"*
Barnarddidds yet another case to the conflict among published decisions with

respect to whether product misuse is a "complete" defense that relieves a

defendant of liability, automatically eliminating any need for fault al location.
^^^

Two cases, Indianapolis Athletic Club v. Alco Standard Corp?^'^ and Morgen v.
Ford Motor Co.^^^ have held that a misuse is a "complete" defense under the
IPLA. Indiana courts view the "misuse" defense as "complete" because the

existence of facts giving rise to the defense amounts to an unforeseeable

intervening cause that relieves the manufacturer of liability as a matter of law.^^^

Barnard joins a Seventh Circuit decision, Chapman v. Maytag Corp.,^^'^ in
determining that "misuse" of a product falls within the scope of the IPLA's

definition of "fault."^^^ The Chapman court concluded that because a jury is
directed to compare all "fauh" in a case, the district court did not abuse its

discretion in determining that the IPLA requires "misuse" be part of the
comparative fault analysis and not a complete defense.^^'

The debate is interesting. The 1995 amendments to the IPLA changed
Indiana law with respect to fault allocation and distribution in product liability

cases. Indeed, the Indiana General Assembly provided 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 34-20-8-1, nor can a defendant
"be held jointly liable for damages attributable to the fault of another
defendant."^^^ In addition, the IPLA now requires the trier offact to compare the
"fault" (as the term is defined by statute) "of the person suffering the physical

harm, as well as the 'fault' of all others who caused or contributed to cause the

261. Id. at 1029.

262. Id. at 1030.

263. Id

264. Mat 1031.
265. Before the 1995 amendments to the IPLA, misuse was a "complete" defense. E.g.,

Estrada v. Schmutz Mfg. Co., 734 F.2d 1218 (7th Cir. 1984).

266. 709 N.E.2d 1070, 1072 (Ind. Ct. App. 1999).

267. 762 N.E.2d 137, 143 (Ind. Ct. App. 2002).

268. Id

269. 297 F.3d 682 (7th Cir. 2002).

270. Id at 689.

271. Id

272. iND. CODE § 34-20-7-1 (1998).



1288 INDIANA LAW REVIEW [Vol. 37:1247

harm "^^^ 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 ofwhether 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.^^"*

The statutory definition of "misuse" seems to consider only the objective
reasonableness of the foreseeability of the misuse by the seller and not the

character of the misuser's conduct. That would tend to explicitly demonstrate
that "misuse" is not "fault." The district judge in Chapman recognized as much.
Thejudge also recognized that the Indiana General Assembly did not specifically
exempt misuse from the scope of the comparative fault requirement and a
plaintiffs misuse arguably falls within Indiana Code section 34-6-2-45(a)'s
definition of "fault."

That the General Assembly may not have overtly indicated 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 equally likely that
the legislature's silence on the matter indicates an implicit recognition that the

"complete" nature of the pre- 1995 product liability defenses was to remain that
way notwithstanding the introduction ofsome comparative fault principles vis-a-
vis defendants and non-parties.

The split in authority will be difficult to resolve without some policy input
from the Indiana General Assembly. In the interim, however, it is clear that

courts are filling in the blank as best they can absent clear legislative direction.

C. Modification and Alteration

Indiana Code section 34-20-6-5 provides that

[i]t is a defense to an action under [the IPLA] that a cause ofthe 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 case of the physical harm
where the modification or alteration is not reasonably expectable to the
seller.'^'

Although this survey Article does not address in detail any modification or

alteration cases, practitioners should recognize that the alteration defense

examines the change in condition ofa product after delivery to the initial user or

consumer. In this context, it is important to recognize that Indiana Code section
34-20-2-1(3) also incorporates the idea of "substantial alteration." Chapter 2-

1(3) establishes a threshold element of proof an IPLA claimant must
affirmatively satisfy in orderto state aprimafijcie IPLA claim—specifically, that

273. Id. §34-20-8- 1(a).

274. Id. §34-20-8- 1(b).

275. Id. § 34-20-6-5.



2004] PRODUCT LIABILITY 1289

the product is expected to and does reach the user or consumer without

substantial alteration in its condition after it is sold by the manufacturer or seller.

It certainly appears as though, in the context of chapter 2-1(3), the General

Assembly intended the phrase "user or consumer" to mean "initial" user or
consumer. If that is, indeed, a correct assumption, then chapter 2-1(3) and

chapter 6-5 are intended to apply to two different factual scenarios (chapter 2-

1 (3) to alterations that occur between time of sale and delivery to the initial user

or consumer and chapter 6-5 to alterations that occur between delivery to the
initial user or consumer and injury).

Conclusion

The 2003 survey period joins the 2002 survey period in illustrating that there
are some important policy decisions that the IPLA has not resolved. Courts are
doing their part to make those decisions absent more clear legislative directive.
The coming years promise to remain interesting for product liability
practitioners.