Indiana Law Review


Survey of Recent Developments in
Indiana Product Liability Law

Joseph R. Alberts*

James Petersen**
Robert B. Thornburg*

Introduction

The 2007 survey period
1

continued to produce decisions that help Indiana

practitioners and judges interpret the Indiana Product Liability Act ("IPLA").
2

This Survey does not attempt to address in detail all of the cases decided during

the survey period.
3

Rather, it examines selected cases that address important,

* Litigation Counsel, Dow AgroSciences LLC, 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).

** Partner, Ice Miller LLP, Indianapolis. B.A., 1970, Illinois State University; M.A., 1973,

University of Illinois; J.D., magna cum laude, 1976, Indiana University School of
Law—Bloomington; past Co-Chair, Product Liability Section, Indiana Defense Lawyers'
Association.

*** Partner, Locke Reynolds LLP, Indianapolis. B.S., cum laude, Ball State University; J.D.,

1996, Indiana University School of Law—Bloomington; Chairman, Product Liability Section,
Defense Trial Counsel of Indiana (2005-2006).

1

.

The survey period is October 1 , 2006, to September 30, 2007. This Article also addresses

a few developments that occurred after September 30, 2007.

2. This Article follows the lead of the Indiana General Assembly and employs the term

"product liability" (not "products liability") when referring to actions governed by the IPLA.

3. Courts issued several important opinions in cases in which the theory of recovery was

related to or in some way based upon "product liability" principles, but the appellate issue did not

involve a question implicating substantive Indiana product liability law. Those decisions are not

addressed in detail here because of space constraints, even though they may be interesting to

Indiana product liability practitioners. See Price v. Wyeth Holdings Corp., 505 F.3d 624 (7th Cir.

2007) (addressing several procedural issues including reinstatement of claims after voluntary

dismissal, default judgment, and removal to federal court); Ervin v. Johnson & Johnson, Inc., 492
F.3d 901, 904-05 (7th Cir. 2007) (addressing the evidentiary standard for exclusion of expert

testimony under Daubert v. Merrell Dow Pharm., Inc. and Federal Rule of Evidence 702); Sims v.
EGA Prods., Inc., 475 F.3d 865, 867-68 (7th Cir. 2007) (determining that damages which are
disproportionate to the defendant's wrong constitutes good cause to set aside default judgment);

Pribble v. Siegwerk USA, Inc., No. 1 :06-cv- 1 1 20-SEB-JMS, 2007 U.S. Dist. LEXIS 24368, at *7-

1 1 (S.D. Ind. Mar. 28, 2007) (addressing issues related to removal to federal court); Klein v. Depuy,

Inc., 476 F. Supp. 2d 1007, 1011-15 (N.D. Ind.), ajf'd, 506 F.3d 553 (7th Cir. 2007) (applying

North Carolina substantive law after determining Indiana substantive law did not apply); In re

Bridgestone/Firestone, Inc., No. IP04-S819C-B/S, 2007 U.S. Dist. LEXIS 9378, at *4 (S.D. Ind.

Jan. 4, 2007) (reinstating motion to dismiss on grounds offorum non conveniens); Large v. Mobile

Tool, Int'l, Inc., No. I:02cvl77, 2006 U.S. Dist. LEXIS 90961, at *23-26 (N.D. Ind. Dec. 15, 2006)

(determining that summary judgment on the issue of indemnification was not proper as there was

conflicting evidence as to whether indemnification provision in an asset purchase agreement was



1 166 INDIANA LAW REVIEW [Vol. 41 : 1 165

substantive product liability issues. This Survey also provides some background
information, context, and commentary when appropriate.

I. The Scope of the IPLA

The Indiana General Assembly first enacted the IPLA in 1978.4 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.
5

In 1995, the General Assembly amended the IPLA to once again encompass
theories of recovery based upon both strict liability and negligence.

6

In 1998, the General Assembly repealed the entire IPLA and recodified it,
effective July 1, 1998.

7 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 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 users or consumers against manufacturers or sellers

for physical harm caused by a product, "regardless of the substantive legal theory
or theories upon which the action is brought."

8 When Indiana Code sections 34-
20-1-1 and -2-1 are read together, there are five unmistakable threshold

requirements for IPLA liability: (1) a claimant who is a user or consumer and is
also "in the class of persons that the seller should reasonably foresee as being

subject to the harm caused";
9
(2) a defendant that is a manufacturer or a "seller

. . . engaged in the business of selling [a] product";
10

(3) "physical harm caused
by a product";

11
(4) a product that is "in a defective condition unreasonably

clear and unambiguous); Azar v. Merck & Co., No. 3:06-cv-0579 AS, 2006 U.S. Dist. LEXIS
78655, at *4-5 (N.D. Ind. Oct. 27, 2006) (granting motion to stay pending transfer to multidistrict

litigation in federal court); Dorman v. Osmose, Inc., 873 N.E.2d 1102, 1106-10 (Ind. Ct. App.

2007) (focusing on juror replacement and evidentiary admissions).

4. Act of Mar. 10, 1978, No. 141, § 28, 1978 Ind. Acts 1308, 1308-10.

5. Act of Apr. 21, 1983, No. 297, 1983 Ind. Acts 1814.

6. Act of Apr. 26, 1995, No. 278, §§ 1-7, 1995 Ind. Acts 4051, 4051-56. See Progressive

Ins. Co. v. Gen. Motors Corp., 749 N.E.2d 484, 487 n.2 (Ind. 2001).

7. Act of Mar. 6, 1998, 1998 Ind. Acts 1. The current version of the IPLA is found in

Indiana Code sections 34-20-1-1 to -9-1.

8. Ind. Code § 34-20-1-1 (2004).

9. Indiana Code section 34-20-1-1 identifies a proper IPLA claimant as a "user" or

"consumer." Indiana Code section 34-20-2-1(1) requires that IPLA claimants be in the "class of

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

defective condition."

1 0. Indiana Code section 34-20- 1 - 1 (2) identifies proper IPLA defendants as "manufacturers"

or "sellers." Indiana Code section 34-20-2-1(2) provides the additional requirement that such a

manufacturer or seller also be "engaged in the business of selling the product," effectively

excluding corner lemonade stand operators and garage sale sponsors from IPLA liability.

11. Ind. Code §34-20-1-1(3) (2004).



2008] PRODUCT LIABILITY 1 167

dangerous to [a] user or consumer" or to his property;
12
and (5) a product that

"reach[ed] the user or consumer without substantial alteration in [its]

condition."
13

Indiana Code section 34-20-1-1 makes clear that the IPLA governs
and controls all claims that satisfy these five requirements, "regardless of the

substantive legal theory or theories upon which the action is brought."
14

A. "User" or "Consumer"

The language the General Assembly employs in the IPLA is very important
when determining who qualifies as IPLA claimants. Indiana Code section 34-20-
1-1 provides that the IPLA governs claims asserted by "users" and
"consumers."

15
For purposes 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.
16

"User" has the same meaning as "consumer."
17

Several published decisions in

12. Id. § 34-20-2-1.

13. Id. § 34-20-2-1(3). Indiana Pattern Jury Instruction 7.03 sets out a plaintiffs burden of

proof in a product liability action. It requires a plaintiff to "prove each of the following

propositions by a preponderance of the evidence":

1. The defendant was a manufacturer of the product [or the part of the product]

alleged to be defective and was in the business of selling the product;

2. The defendant sold, leased, or otherwise put the product into the stream of

commerce;

3. The plaintiff was a user or consumer of the product;

4. The product was in a defective condition unreasonably dangerous to users or

consumers (or to user's or consumer's property);

5. The plaintiff was in a class of persons the defendant should reasonably have

foreseen as being subject to the harm caused by the defective condition;

6. The product was expected to and did reach the plaintiff without substantial

alteration of the condition in which the defendant sold the product;

7. The plaintiff or the plaintiff s property was physically harmed; and

8. The product was a proximate cause of the physical harm to the plaintiff or the

plaintiffs property.

Ind. Pattern Jury Instructions—Civil § 7.03 (2005).
14. Ind. Code § 34-20-1-1 (2004).
15. Id.

16. Id. § 34-6-2-29.

17. Id. § 34-6-2-147.



1 168 INDIANA LAW REVIEW [Vol. 41 : 1 165

recent years construe the statutory definitions of "user" and "consumer."
18

A literal reading of the IPLA demonstrates that even if a claimant qualifies
as a statutorily-defined "user" or "consumer," he or she also must satisfy 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 of persons that the

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

19
Thus, the plain language of the statute assumes that a

person or entity must already qualify as a "user" or a "consumer" before a

separate "reasonable foreseeability" analysis is undertaken. In that regard, the

IPLA does not appear to provide a remedy to a claimant whom a seller might
reasonably foresee as being subject to the harm caused by a product's defective
condition if that claimant falls outside of the IPLA's definition of "user" or

"consumer."

There were no significant published decisions during the survey period that

interpreted the terms "user" or "consumer."
20

18. See Butler v. City of Peru, 733 N.E.2d 912, 919 (Ind. 2000) (mentioning that a

maintenance worker could be considered a "user or consumer" of an electrical transmission system

because his employer was the ultimate user and he was an employee of the "consuming entity");

Estate of Shebel v. YaskawaElec. Am., Inc., 713 N.E.2d275, 279 (Ind. 1999) (holding that a "user

or consumer" includes a distributor who uses the product extensively for demonstration purposes).

For a more detailed analysis of Butler, see Joseph R. Alberts & David M. Henn, Survey ofRecent
Developments in Indiana Product Liability Law, 34 Ind. L. Rev. 857, 870-72 (2001). For a more

detailed analysis of Estate of Shebel, see Joseph R. Alberts, Survey of Recent Developments in

Indiana Product Liability Law, 33 Ind. L. Rev. 1331, 1333-36 (2000).

19. Indiana Code section 34-20-2-1 imposes liability 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 of persons that the

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

condition.

20. During the 2006 survey period, the Indiana Supreme Court decided Vaughn v. Daniels

Co. (West Virginia), Inc., 841 N.E.2d 1 133 (Ind. 2006). That case helped to further define who

qualifies as a "user" or "consumer" for purposes of bringing an action under the IPLA. In that case,

Daniels Company ("Daniels") designed and built a coal preparation plant at a facility owned by

Solar Sources, Inc. ("Solar"). Id. at 1 136. Part of the design involved the installation of a heavy

media coal sump. Id. An out-of-state steel company manufactured the sump that Daniels designed

and sent it, unassembled, to the facility. Id. Stephen Vaughn worked for the construction company

that Daniels hired to install the sump. Id. During the installation process, Vaughn climbed onto

the top of the sump to help connect a pipe. Id. The chain he was using to secure the pipe in place

gave way, causing Vaughn to fall and sustain injuries. Id. Vaughn did not wear his safety belt

when he climbed onto the sump. Id. The Indiana Supreme Court held that Daniels could not be

liable under the IPLA because Vaughn was not a "user" or "consumer." Id. at 1 141-43. Because

the "product" was not assembled and installed at the time of Vaughn's accident, "neither Vaughn

nor anyone else was a user of the product at the time it was still in the process of assembly and



2008] PRODUCT LIABILITY 1 169

B. "Manufacturer" or "Seller"

For purposes of the IPLA, "'[manufacturer' . . . means a person or an entity

who designs, assembles, fabricates, produces, constructs, or otherwise prepares
a product or a component part of a product before the sale of the product to a user

or consumer."
21

"'Seller' . . . means a person engaged in the business of selling

or leasing a product for resale, use, or consumption."
22

Indiana Code section 34-

20-2-1(2) 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."

23

Sellers can be held liable as manufacturers in two ways. First, a seller can

be held liable as a manufacturer if the seller fits within Indiana Code section 34-

6-2-77(a)'s definition of "manufacturer," which 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 of the manufacturing
process;

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

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

ultimate user or consumer;

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

(5) owns in whole or significant part the manufacturer.
24

Second, a seller can be deemed a statutory "manufacturer" and, therefore, be
held liable to the same extent as a manufacturer in one other limited
circumstance. Indiana Code section 34-20-2-4 provides that a seller may be
deemed a "manufacturer" "if the court is unable to hold jurisdiction over a
particular manufacturer" and if the seller is the "manufacturer's principal

installation." Id. at 1139.

21. Ind. Code § 34-6-2-77 (2004).

22. Id. § 34-6-2-136.

23. Id. § 34-20-2-1(2); see, e.g., Williams v. REP Corp., 302 F.3d 660, 662-64 (7th Cir.

2002) (recognizing that Indiana Code § 33-1-1 .5-2(3), the predecessor to Indiana Code § 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, 182 F. Supp. 2d 730, 745-46 (N.D. Ind. 2002) (holding that although the

defendant 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 it a "manufacturer" of the plant); see also Joseph R. Alberts & James M.
Boyers, Survey ofRecent Developments in Indiana Product Liability Law, 36 IND. L. REV. 1 165,

1170-72(2003).

24. IND. Code § 34-6-2-77(a) (2004).



1 170 INDIANA LAW REVIEW [Vol. 41 : 1 165

distributor or seller."
25

One other provision exists which practitioners must be aware in connection
with liability of "sellers" under the IPLA. When the theory of liability is based
on "strict liability in tort,"

26
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 DPLA defendant.
27

There were no significant published decisions during the survey period that

interpreted the terms "manufacturer" or "seller."
28

25. Id. § 34-20-2-4. Kennedy v. Guess, Inc., 806 N.E.2d 776 (Ind. 2004), is the most recent

case interpreting Indiana Code section 34-20-2-4 and specifically addressing the circumstances

under which entities may be considered "manufacturers" or "sellers" under the IPLA. See also

Goines v. Fed. Express Corp., No. 99-CV-4307-JPG, 2002 U.S. Dist. LEXIS 5070, at *14-15 (S.D.

111. Jan. 8, 2002). The court, applying Indiana law, examined the "unable to hold jurisdiction over"

requirement ofIndiana Code section 34-20-2-4. Id. at*9. The plaintiff assumed that "jurisdiction"

refers to the power of the court to hear a particular case. Id. at *9-10. The defendant argued that

the phrase equates to "personal jurisdiction." Id. at *12. The court refused to resolve the issue,

deciding instead to simply 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. at *14-

15.

26. 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.

27. Ind. Code §34-20-2-3 (2004). InRitchiev. Glidden Co., 242F.3d713, 725-26 (7thCir.

2001), the court cited 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 ofwhat 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 plaintiff failed to designate sufficient

facts to demonstrate that Glidden had actual knowledge of an alleged product defect (lack of

warning 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. at 725 (emphasis added). The Ritchie case involved a failure to warn claim

against Glidden under the IPLA. Id. Indiana Code section 34-20-2-2 makes it clear that "liability

without regard to the exercise of reasonable care" (strict liability) applies now only to product

liability claims alleging a manufacturing defect theory. Claims alleging design or warning defect

theories are controlled by a negligence standard. See, e.g., Burt v. Makita USA, Inc., 212 F. Supp.

2d 893, 899 (N.D. Ind. 2002); see also Alberts & Boyers, supra note 23, at 1 173-75.
28. The 2006 survey period produced two important decisions in this area. In Thornburg v.

Stryker Corp., No. l:05-cv-1378-RLY-TAB, 2006 WL 1843351 (S.D. Ind. June 29, 2006), the
plaintiff underwent hip replacement surgery and subsequently filed product liability and medical

malpractice claims against defendants Stryker Corporation ("Stryker") and Howmedica Osteonics



2008] PRODUCT LIABILITY 1171

C. Physical Harm Caused by a Product

For purposes of the IPLA, "'[p]hysical harm' . . . means bodily injury, death,

loss of services, and rights arising from any such injuries, as well as sudden,

major damage to property."
29

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

30

For purposes of the IPLA, "'[p]roduct . . . means any item or good that is

personalty at the time it is conveyed by the seller to another party."
31

"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."
32

Although it is a "not for publication" memorandum decision, Fincher v.
Solar Sources, Inc.

33
is an opinion that was rendered during the survey period and

to which practitioners may look for additional guidance about what is and what

Corp. d/b/a Stryker Orthopaedics ("HOC"). Id. at *1. Stryker moved for summary judgment,

contending that it did not manufacture or sell the device that Thornburg alleged caused her injuries.

Id. Thornburg cited "only Stryker' s status as HOC's parent company to support her claims against

Stryker." Id. at *4. According to the court, such "evidence alone is ineffectual because it ignores

the 'general principle of corporate law . . . that a parent corporation ... is not liable for the acts of

its subsidiaries." Id. (quoting United States v. Bestfoods, 524 U.S. 51, 60 (1998)). The record was

otherwise "bereft of any evidence that Stryker sold, leased, or otherwise placed the allegedly

defective hip replacement system into the stream of commerce." Id. Consequently, the court held

that Thornburg's evidence did not satisfy her summary judgment burden and granted summary

judgment in Stryker' s favor. Id.

In Fellnerv. Philadelphia Toboggan Coasters, Inc., No. 3:05-cv-218-SEB-WGH, 2006 WL
2224068 (S.D. Ind. Aug. 2, 2006), Tamara Fellner was killed when she was ejected from a wooden

roller coaster train operated as an attraction at Holiday World amusement park. Id. at *1. The

company that owned and operated the park and the roller coaster, Koch Development Corp.

("Koch"), could not be held liable with respect to plaintiffs' strict liability and breach of implied

warranty claims because it was neither a manufacturer nor a seller of the roller coaster. Id. at *3-4.

29. Ind. Code § 34-6-2-105(a) (2004).

30. Id. § 34-6-2-105(b); see, e.g., Miceli v. Ansell, Inc., 23 F. Supp. 2d 929, 933 (N.D. Ind.

1998) (denying a motion to dismiss a case determining that Indiana recognizes that pregnancy may

be considered a "harm" in certain circumstances); Fleetwood Enters., Inc. v. Progressive N. Ins.

Co., 749 N.E.2d 492, 493 (Ind. 2001) (holding that "personal injury and damage to other property

from a defective product are actionable under the [IPLA], but their presence does not create a claim

under the Act for damage to the product itself); Progressive Ins. Co. v. Gen. Motors Corp., 749

N.E.2d 484, 486 (Ind. 2001) (holding that there is no recovery under the IPLA where a claim is

based on damage to the defective product itself); see also Great N. Ins. Co. v. Buddy Gregg Motor

Homes, Inc., No. IP 00-1378-C-H/K, 2002 U.S. Dist. LEXIS 7830, at *2 (S.D. Ind. Apr. 29, 2002)

(holding that there was no recovery under the IPLA in a case involving a motor home destroyed in

a fire allegedly caused by a defective wire in the engine compartment).

31. Ind. Code § 34-6-2- 1 14(a) (2004).
32. Id. §34-6-2-1 14(b).

33. No. 42A01-0701-CV-25, 2007 WL 1953473 (Ind. Ct. App. 2007) (mem.).



1 172 INDIANA LAW REVIEW [Vol. 41 : 1 165

is not a "product" for purposes of the IPLA. In Fincher, the plaintiff was a truck

driver who was injured in an accident while hauling coal sludge.
34

Coal sludge

has a wet consistency and is comprised of the fine particulate matter that remains

after raw coal is mined and put through a washing process.
35 A panel of the

Indiana Court of Appeals unanimously agreed that coal sludge was not a product

under the IPLA.
36

According to the Fincher court,

[t]he coal sludge in question is a waste by-product of a coal mining

operation. It is trash. The coal sludge was not marketable or ever in a
marketed state. It was not sold or being transported to a consumer. It

was being transported to a disposal site. It was also never intended for
consumption or for any use by any consumer.

37

D. Defective and Unreasonably Dangerous

Only products that are in a "defective condition" are ones for which IPLA
liability may attach.38 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 or consumption.39

Recent cases confirm that establishing one of the foregoing threshold

requirements without the other will not result in liability under the IPLA.
40

Claimants in Indiana may prove that a product is in a "defective condition"
by asserting one or a combination of three theories: (1) the product has a defect

in its design (a "design defect"); (2) the product lacks adequate or appropriate

warnings (a "warning defect"); or (3) the product has a defect that is the result

of a malfunction or impurity in the manufacturing process (a "manufacturing

defect").
41

34. /</. at*l.

35. Id.

36. Id. at *6.

37. Id.

38. Ind. CODE § 34-20-2-1(1) (2004); see also Westchester Fire Ins. Co. v. Am. Wood

Fibers, Inc., No. 2:03-CV-178-TS, 2006 WL 3147710, at *5 (N.D. Ind. Oct. 31, 2006).
39. Ind. Code § 34-20-4-1 (2004).
40. See Baker v. Heye-Am., 799 N.E.2d 1135, 1140 (Ind. Ct. App. 2003) ("[UJnder the

IPLA, the plaintiff must prove that the product was in a defective condition that rendered it

unreasonably dangerous." (citing Cole v.Lantis Corp., 714 N.E.2d 194, 198 (Ind. Ct. App. 1999))).

41

.

See First Nat'l Bank & Trust Corp. v. Am. Eurocopter Corp. {Mow II), 378 F.3d 682,
689 (7th Cir. 2004); Westchester Fire Ins. Co., 2006 WL 3147710, at *5; Baker, 799 N.E.2d at



2008] PRODUCT LIABILITY 1 173

Although claimants are free to assert any of those three theories for proving

that a product is in a "defective condition," the IPLA provides explicit statutory
guidelines identifying when products are not defective as a matter of law.
Indiana Code section 34-20-4-3 provides that "[a] product is not defective under
[the IPLA] if it is safe for reasonably expectable handling and consumption. If

an injury results from handling, preparation for use, or consumption that is not

reasonably expectable, the seller is not liable under [the IPLA]."
42

In addition,

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."43

In addition to the two specific statutory pronouncements identifying when a
product is not "defective" as a matter of law, Indiana law also defines when a
product may be considered "unreasonably dangerous" for purposes of the IPLA.
A product is "unreasonably dangerous" only if its use "exposes the user or
consumer to a risk ofphysical harm . . . beyond that contemplated by the ordinary
consumer who purchases [it] with the ordinary knowledge about the product's
characteristics common to the community of consumers."44 A product is not

1 140; Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d 155, 161 (Ind. Ct. App. 1997). Troutner

v. Great Dane Ltd. Partnership, No. 2:05-CV-040-PRC, 2006 WL 2873430 (N.D. Ind. Oct. 5,
2006), provides additional authority confirming that a plaintiffs product liability claim will fail as

a matter of law if he or she does not articulate a legitimate manufacturing, design, or warning

defect. In that case, the plaintiff was a semi-truck driver who fell and suffered head injury when

a grab bar mounted on his trailer gave way. Id. at *1. The plaintiff sued the companies that

manufactured and sold the trailer and the grab bar, alleging that they placed a trailer with a grab bar

into the stream of commerce in a defective and unreasonably dangerous condition. Id. The case

was removed to federal court, and both manufacturing defendants moved for summary judgment,

pointing out that "plaintiffs own expert . . . testified that the most likely cause of the failure of the

grab bar was inadequate and negligent maintenance." Id. at *3. The plaintiff did not file a response

to either motion. Id. at *1. Because, under such circumstances, no reasonable jury could find for

plaintiff on the product liability claims, the court granted summary judgment. Id. at *3.

42. Ind. Code § 34-20-4-3 (2004). One recent case discussing "reasonably expectable use"

is Hunt v. Unknown Chemical Manufacturer No. One, No. IP 02-389-C-M/S, 2003 U.S. Dist.

LEXIS 20138, at *28-32 (S.D. Ind. Nov. 5, 2003) (Homeowner tore down and burned a deck that

was made from lumber treated with chromium copper arsenate. He spread the ashes as fertilizer

in the family garden. Later tests of the soil in the garden revealed elevated levels of arsenic. Judge

Larry McKinney held that homeowner could not pursue product liability claim because his use of

the lumber was not, legally speaking, foreseeable, intended, or expected.).

43. Ind. Code § 34-20-4-4.

44. Id. § 34-6-2-146; see also Baker, 799 N.E.2d at 1 140; Cole v. Lantis Corp., 714 N.E.2d

194, 199 (Ind. Ct. App. 1999). In Baker, a panel of the Indiana Court of Appeals wrote that "[t]he

question whether a product is unreasonably dangerous is usually a question of fact that must be

resolved by the jury." 799 N.E.2d at 1140 (emphasis added) (citing Vaughn v. Daniels Co. (W.

Va.), Inc., 717 N.E.2d 1 1 10, 1 128 (Ind. Ct. App. 2002), vacated, 841 N.E.2d 1 133 (2006)). Those

panels also seem to favorjury resolution in determining reasonably expected use. Indeed, the Baker

opinion states that



1174 INDIANA LAW REVIEW [Vol. 41:1165

unreasonably dangerous as a matter of law if it injures in a way or in a fashion
that, by objective measure, is known to the community of persons consuming the
product.

45

In cases alleging improper design or inadequate warnings as the theory for

proving that a product is in a "defective condition," recent decisions have quite

clearly recognized that the substantive defect analysis (i.e., whether a design was

inappropriate or whether a warning was inadequate) shouldfollow a threshold

analysis that first examines whether, in fact, the product at issue is "unreasonably

reasonably expectable use, like reasonable care, involves questions concerning the

ordinary prudent person, or in the case of products liability, the ordinary prudent

consumer. The manner of use required to establish "reasonably expectable use" under

the circumstances of each case is a matter peculiarly within the province of the jury.

Id. (citing Vaughn, 111 N.E.2d at 1128).

It would seem incorrect, however, to conclude from those pronouncements that there exists

something akin to a presumption that juries always should resolve whether a product is

unreasonably dangerous or whether a use is reasonably expectable. Indeed, recent cases have

resolved 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., 212 F. Supp. 2d 893 (N.D. Ind. 2002), 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." Id. at 895. With respect to the defective

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. Id. at 900. 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." Id. ; see also Miller v. Honeywell Int'l, Inc., No.

IP 98-1742 C-M/S, 2002 U.S. Dist. LEXIS 20478, at *l-4 (S.D. Ind. Oct. 15, 2002) (holding that

Honeywell's design specifications for planetary gears and gear carrier assembly within the engine

ofan Army UH- 1 helicopter were not defective as a matter oflaw at the time the specifications were

introduced into the stream of commerce).

45. See Baker, 799 N.E.2d at 1 140; see also Moss v. Crosman Corp., 136 F.3d 1 169, 1 174

(7th Cir. 1998) (writing that a product may be "dangerous" in the colloquial sense, but not

"unreasonably dangerous" for purposes of IPLA liability). An open and obvious danger negates

liability. "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." Hughes v. Battenfeld Glouchester Eng'g

Co., No. TH 01-0237-C T/H, 2003 U.S. Dist. LEXIS 17177, at *7-8 (S.D. Ind. Aug. 20, 2003)
(quoting Cole, 714 N.E.2d at 199). In Hughes, the plaintiff injured his hand while separating and

rethreading plastic film through a machine called a secondary treater nip station. Id. at *2-3.

Plaintiff admitted that he knew about the dangers associated with using the nip station because he

was aware of reports by co-workers who were injured performing similar tasks. Id. at *4. Plaintiff

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. Id. at *4. Judge Tinder held that the dangerous condition of the nip station was

open and obvious as a matter of law and entered summary judgment. Id. at *17.



2008] PRODUCT LIABILITY 1 175

dangerous."
46

The IPLA provides that liability attaches for placing in the stream of
commerce a product in a "defective condition"

47
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."
48 What the IPLA bestows, however, in

terms of liability despite the exercise of "all reasonable care [i.e., fault]," it then

removes for design and warning defect cases, replacing it with a negligence

standard:

[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.
49

The statutory language is, therefore, clear; it imposes a negligence standard

in all product liability claims relying upon a design or warning theory to prove

defectiveness, while retaining strict liability (liability despite the "exercise of all

reasonable care") only for those claims relying upon a manufacturing defect

theory.
50

Thus, just as in any other negligence case, a claimant advancing design

46. Indeed, in Bourne v. Marty Gilman, Inc., No. l:03-cv-01375-DFH-VSS, 2005 U.S. Dist.

LEXIS 15467, at *1 (S.D. Ind. July 20, 2005), ajf'd, 452 F.3d 632 (7th Cir. 2006) (involving an

alleged design defect) and Conley v. Lift-All Co., No. l:03-cv-01200-DFH-TAB, 2005 U.S. Dist.

LEXIS 15468, at *1 (S.D. Ind. July 25, 2005) (involving an alleged warnings defect), Judge

Hamilton followed that precise approach.

47. Ind. Code §34-20-2-1(1) (2004).

48. Id. § 34-20-2-2.

49. Id.

50. See Mesman v. Crane Pro Servs., 409 F.3d 846, 849 (7th Cir. 2005) ("Under Indiana's

products liability law, a design defect can be made the basis of a tort suit only if the defect was a

result of negligence in the design."); First Nat'l Bank & Trust Corp. v. Am. Eurocopter Corp.
(Mow II), 378 F.3d 682, 690 n.4 (7th Cir. 2004) ("Both Indiana's 1995 statute (applicable to this
case) and its 1998 statute abandoned strict liability in design defect and failure to warn cases.

Hence, unlike manufacturing defects, for which manufacturers are still held strictly liable, claims

of design defect and failure to warn must be proven using negligence principles."); Conley, 2005

U.S. Dist. LEXIS 15468, at *12-13 ("The IPLA effectively supplants [the plaintiffs] common law

claims because all of his claims are brought by a user or consumer against a manufacturer for

physical harm caused by a product. Plaintiffs common law claims will therefore be treated as

merged into the IPLA claims."); Bourne, 2005 U.S. Dist. LEXIS 15467, at *9 n.2 ("[P]laintiffs may

not pursue a separate common law negligence claim [for design defect]. Their negligence claim

is not dismissed but is more properly merged with the statutory claim under the IPLA, which

includes elements of negligence."), ajf'd, 452 F.3d 632 (7th Cir. 2006); see also Miller v.

Honeywell Int'l Inc., No. IP 98-1742 C-M/S, 2002 U.S. Dist. LEXIS 20478, at *38 (S.D. Ind. Oct.

15, 2002), ajf'd, 2004 U.S. Dist. LEXIS 15261 (7th Cir. July 26, 2004); Burt v. Makita, USA, Inc.,



1 176 INDIANA LAW REVIEW [Vol. 41 : 1 165

or warning defect theories must satisfy the traditional negligence

requirements—duty, breach, injury, and causation.51 Despite the IPLA's
unambiguous language and several years worth of authority recognizing that

"strict liability" applies only in cases involving alleged manufacturing defects,

some courts unfortunately continue to employ the term "strict liability" when
referring to IPLA claims, even when those claims allege warning and design
defects and clearly accrued after the 1995 amendments took effect.52

1. Manufacturing Defect Theory.—In Gaskin v. Sharp Electronics Corp.,53
plaintiffMary Gaskin rented a house in which her seventy-four-year-old mother,
Lee Ester Gaskin, also resided.

54 On March 2, 2004, a fire broke out in the
house.

55 Lee Ester died in the fire.
56

Plaintiffs sued Sharp Electronics ("Sharp"),

the manufacturer of the television, "alleging that Sharp [was] strictly liable for

designing, manufacturing, and placing into the stream of commerce the . . .
television in an unreasonably dangerous and/or defective condition."

57 They also
alleged that "Sharp was negligent in the design, manufacture, and marketing of
the television."

58 The television at issue was located in Lee Ester's bedroom on

212 F. Supp. 2d 893, 899-900 (N.D. Ind. 2002); Birch v. Midwest Garage Door Sys., 790 N.E.2d

504, 518 (Ind. Ct. App. 2003).

51. E.g., Conley, 2005 U.S. Dist. LEXIS 15468, at *13-14 ("To withstand summary

judgment, [the plaintiff] must come forward with evidence tending to show: ( 1 ) [the defendant] had

a duty to warn the ultimate users of its sling that dull or rounded load edges could cut an

unprotected sling; (2) the hazard was hidden and thus the sling was unreasonably dangerous; (3)

[the defendant] failed to exercise reasonable care under the circumstances in providing warnings;

and (4) [the defendant's] alleged failure to provide adequate warnings was the proximate cause of

his injuries.").

52. See, e.g., Whitted v. Gen. Motors Corp., 58 F.3d 1200, 1206 (7th Cir. 1995); Burt, 212

F. Supp. 2d at 900; see also Fellner v. Phila. Toboggan Coasters, Inc., No. 3:05-CV-218-SEB-

WGH, 2006 WL 2224068, at *1, *4 (S.D. Ind. Aug. 2, 2006) (cause of action accrued on May 31,
2003); Cincinnati Ins. Cos. v. Hamilton Beach/Proctor-Silex, Inc., No. 4:05 CV 49, 2006 WL
299064, at *2-3 (N.D. Ind. Feb. 7, 2006) (cause of action accrued on June 30, 2003); Vaughn v.

Daniels Co. (W. Va.), Inc., 841 N.E.2d 1133, 1138 (Ind. 2006) (cause of action accrued on

December 12, 1995).

53. No. 2:05-CV-303, 2007 U.S. Dist. LEXIS 72347 (N.D. Ind. Sept. 26, 2007).

54. Id. at* 1-2.

55. /<£at*l.

56. Id. at *2.

57. Id. As noted above, although the plaintiffs alleged strict liability ostensibly based upon

theories of defective design and warnings, Indiana law does not permit strict liability in cases

espousing those theories as a way to prove a product is defective. See Ind. Code § 34-20-2-2

(2004). Indiana law permits strict liability to attach only when a manufacturing defect theory is

pursued. See id.

58. Gaskin, 2007 U.S. Dist. LEXIS 72347, at *2. Damages suffered as a result of Lee Ester's

death, physical injuries suffered by Mary, and destruction of the home and its contents (other than

the television itself) would appear to be the "physical harm" covered by the IPLA for which

plaintiffs seek legal redress. The IPLA provides the legal basis for recovery of damages against



2008] PRODUCT LIABILITY 1 177

a television stand.
59

"Lee Ester Gaskin did not smoke, and she did not have any

candles in the room. Mary Gaskin testified that the television was the only
electrical appliance in the room, and the only item plugged into an electrical

outlet. The television was largely destroyed in the fire."
60

Sharp moved for summary judgment, arguing that plaintiffs "put forth
insufficient evidence to prove that the television was defective."

61
In their

response, plaintiffs did not address Sharp's arguments concerning their design

and warning defect theories.
62 As a result, the court deemed plaintiffs' arguments

on those points to be waived and granted summary judgment to Sharp with
respect to those two theories.

63 With regard to the manufacturing defect theory,

the court identified the critical evidence as the testimony of Steven Shand,

plaintiffs' fire cause and origin expert.
64

Shand investigated the scene two days

after the fire, by which time the damaged structure had been partially excavated,
debris had been thrown out of the window, and there were missing items,

including the television.
65

"Based upon a burn pattern analysis, the degree of destruction, and the
evidence [he] examined," Shand concluded that the fire originated in the

Sharp, the television manufacturer, as a result of such harm. The IPLA does not appear to

contemplate "negligent manufacture" or "negligent marketing" theories. To the extent that the

plaintiffs attempted in their complaint to pursue separate, non-IPLA-based negligence claims for

the physical harm noted above, Indiana law does not appear to allow them to do so. The IPLA

would, however, permit a "negligence" action to the extent that plaintiffs pursued a theory of

liability against Sharp based upon allegedly defective design or warnings. See Ind. Code § 34-20-

2-2. In either of those instances, the claim is essentially a "negligence" claim because it would

require plaintiffs to prove that Sharp was negligent in its design of the television or in

communicating its warnings or instructions. See id. Under the current IPLA, plaintiffs need not

prove that Sharp was negligent if they employ a manufacturing defect theory to demonstrate

defectiveness because it remains the only theory for which strict liability is available. See id.

59. Gaskin, 2007 U.S. Dist. LEXIS 72347, at *4.

60. Id.

61. Id. atm-12.

62. Id. at*ll.

63. Id.

64. Id. at *5-6. Plaintiffs also disclosed another liability expert, Dennis Dyl. Id. at *5. Dyl

"opined that a poor pin connection on the CRTboard inside the television resulted in high electrical
resistance which generated heat and caused the fire." Id. The trial court struck Dyl's testimony

"because it did not comport with the reliability requirements of Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 592 (1993)." Id. The court subsequently clarified that ruling, determining that

Dyl could testify regarding "general principles," "background testimony," and "observations during

his data collection" at trial only if plaintiffs could "show, depending upon all of the evidence, that

it is relevant" and if plaintiffs "tie up the proposed evidence so that it fits the factfs] of the case."

Id. at *2. Because the trial judge did not know what plaintiffs would be able to establish at trial,

it presumed for the purpose of resolving Sharp's motion for summaryjudgment, that the testimony

from Dyl would be inadmissible in its entirety. Id. at *3.

65. Id. at*5-6.



1 178 INDIANA LAW REVIEW [Vol. 41:1165

northwest corner bedroom near the television stand.
66 He "concluded that the fire

did not start on the bed" and also "eliminated the [two] receptacle outlets, the

wall light switch, the overhead light, the closet, and the electrical wiring in the

wall as possible sources of the fire."
67 He could not offer a more definitive cause

determination because he had not been able to examine all of the evidence

removed from the scene.
68 With respect to the television in particular, "Shand

stated during his deposition that he is not qualified to render any opinions about

the television, [and,] therefore, he [did] not have an opinion [about] whether the

television was the cause of the fire."
69

Shand testified that, although he had no

opinion about whether the television started the fire, it was the only ignition

source that had not been eliminated.
70

In support of their legal position, plaintiffs relied heavily upon Ford Motor
Co. v. Reed

11
and Whittedv. General Motors Corp.

12
Plaintiffs cited Reed for the

proposition that plaintiffs could demonstrate the existence of a manufacturing

defect in one of four ways: (1) producing an expert witness "to offer direct

evidence of a specific manufacturing defect"; (2) producing an expert witness to

circumstantially prove that a specific defect caused the product failure; (3)
introducing "direct evidence from an eyewitness of the malfunction, supported

by expert testimony explaining the possible causes of the defective condition";

and/or (4) introduction of "inferential evidence by negating other possible

causes."
73

Because the evidence provided by Shand was insufficient to satisfy

any of the first three methods for proving manufacturing defect, the judge in

Gaskin recognized that the only viable method of proving manufacturing defect
available to the plaintiffs was the fourth method—introduction of inferential
evidence by negating other possible causes.

74

Although recognizing that only the fourth method identified in Reed was
"potentially" applicable to the case at hand, the court acknowledged "some
confusion" about whether any of the methods identified in Reed, which are

admittedly quite "similar to a res ipsa [loquitor] test, are truly applicable to

Indiana products liability law."
75 As a result, thejudge carefully considered both

66. Id. at *6. In his report, Shand wrote that: "[a] television stand located in the area of fire

origin had nearly been consumed and a 'V pattern on the east wall established that the fire had

burned upward and outward from the stand." Id.

67. Id.

68. Id.

69. Id. at *6-7.

70. Id. at *7. From his examination of the wall receptacle, Shand testified in his deposition

that he believed only one receptacle had something plugged into it at the time of the fire, but could

not rule out the possibility that there was a multi-prong adapter plugged into the receptacle. Id.

71. 689 N.E.2d 751 (Ind. Ct. App. 1997).

72. 58 F.3d 1200 (7th Cir. 1995).

73. Gaskin, 2007 U.S. Dist. LEXIS 72347, at *13 (citing Reed, 689 N.E.2d at 753).

74. Id.

75. Id. Courts have required the introduction of expert testimony in res ipsa loquitur actions.

See, e.g., Smoot v. Mazda Motors of Am., Inc., 469 F.3d 675 (7th Cir. 2006) (holding that plaintiff



2008] PRODUCT LIABILITY 1 179

the Reed and Whitted cases, ultimately determining that it would

recognize[] the four factors set forth in Reed as 'helpful tools' in the
basic inquiry as to whether there is sufficient evidence of a defect, and

recognize [] that in some rare circumstances, circumstantial evidence can
produce reasonable inferences from which a jury can reasonably find

that the defendant manufactured a product containing a defect.
76

In Gaskin, the judge noted that the evidence before him was "weaker than
that in Reed, because ... no expert has testified that the television caused the

fire, and no expert has pinpointed exactly where the fire started in the

television."
77

"However," he continued, "like in Reed, [pjlaintiffs, with the help

of Shand, have basically eliminated all other potential causes of the fire."
78 He

ultimately concluded as follows:

Viewing the facts in the light most favorable to the nonmovant, as

this [c]ourt must on summary judgment, it finds that Shand has
sufficiently negated other reasonably possible causes, and [p]laintiffs

have satisfied the fourth method of proving a manufacturing defect as
annunciated in Whitted and Reed. Moreover . . . Shand' s testimony that

the fire started just [n]orth of the television stand (within several inches)

was consistent with the theory that the television started the fire, and that
the entertainment center was within the area of fire origin. Plaintiffs
have demonstrated that there is a genuine issue of material fact as to

whether the television caused the fire, and specifically, whether Sharp

placed into the stream of commerce a television set that was defectively
manufactured.

79

The parties also disputed whether plaintiffs had sufficiently demonstrated
that the defective condition of the television existed at the time it left Sharp's

control. As noted above, there are two threshold IPLA requirements that an
Indiana product liability plaintiff must establish as part of his or her prima facie

case: (1) a product's defective and unreasonably dangerous condition existed at

the time it was conveyed by the seller to another party;80 and (2) the defective
product reached the user or consumer without substantial alteration.

81 The court
in Gaskin held that the plaintiffs offered enough evidence to preclude summary
judgment with regard to those threshold proofrequirements.

82 The court pointed
to evidence that the television at issue: (1) "was only two months old at the time

could not sustain an action for res ipsa loquitur without admissible expert testimony because the

inference of negligence was obvious only to an expert).

76. Id. at *16 (citing Reed, 689 N.E.2d at 754).

77. Id. at*18.

78. Id.

79. Id. at *21 (citation omitted).

80. Ind. Code § 34-20-4-1 (2004).
81. Id. §34-20-2-1.

82. Gaskin, 2007 U.S. Dist. LEXIS 72347, at *23-24.



1 180 INDIANA LAW REVIEW [Vol. 41:1 165

of the [fire]"; (2) was purchased from a local retailer; (3) was "unwrapped in a

pristine condition"; (4) "was only used for approximately one month"; (5) had

no problems before the fire; (6) was not mishandled, and (7) "was never

repaired."
83

Accordingly, the judge in Gaskin concluded that, "although the

evidence presented by [p]laintiffs is scant, it is sufficient to create a triable issue

of fact. Plaintiffs produced enough evidence to raise a material issue of fact that

the Sharp television . . . caused a fire due to a manufacturing defect."
84

It should be briefly noted here that the parties and the court in Gaskin seem

to have well-recognized that evidence of a product's condition after leaving the

manufacturer's or seller's control is important both as an IPLA-mandated

threshold requirement for which the plaintiff bears the burden of proof, as well

as an IPLA-based affirmative defense for which the defendant bears the burden

of proof.
85

2. Design Defect Theory.—Decisions that address substantive design defect
allegations in Indiana require plaintiffs to prove the existence of what

practitioners and judges often refer to as a "safer, feasible alternative" design.
86

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.

87 One panel of the Seventh Circuit
(Judge Easterbrook writing) has described that "a design-defect 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 accidents."
88

Stated in a slightly different way, "[t]he [p]laintiff bears the burden of proving

a design to be unreasonable, and must do so by showing there are other safer
alternatives, and that the costs and benefits of the safer design make it
unreasonable to use the less safe design."

89

83

.

Id. at *24. The parties also disputed whether Sharp has properly raised the state-of-the-art

presumption in Indiana Code section 34-20-5-1 and, if so, whether plaintiffs had rebutted it.

Although professing that it was not deciding whether Sharp had properly raised the presumption,

the court concluded that the plaintiffs had "put forth enough evidence ofa manufacturing defect that

a rational jury could find that the presumption has been overcome." Id. at *25. A more detailed
discussion about this portion of the Gaskin decision is addressed in infra note 273 and

accompanying text.

84. Gaskin, 2007 U.S. LEXIS 72347, at *25.

85. Part IV.C, infra, addresses those points in more detail.

86. In cases alleging improper design to prove that a product is in a "defective condition,"

the substantive defect analysis may need to follow a threshold "unreasonably dangerous" analysis

if one is appropriate. See, e.g., Bourne v. Marty Gilman, Inc., No. 1 :03-cv-01375-DFH-VSS, 2005

U.S. Dist. LEXIS 15467, at *10-20 (S.D. Ind. July 20, 2005), affd, 452 F.3d 632 (7th Cir. 2006).

87. See Whitted v. Gen. Motors Corp., 58 F.3d 1200, 1206 (7th Cir. 1995); Burt v. Makita

USA, Inc., 212 F. Supp. 2d 893, 900 (N.D. Ind. 2002).

88. McMahon v. Bunn-o-matic Corp., 150 F.3d 651, 657 (7th Cir. 1998).
89. Westchester Fire Ins. v. Am. Wood Fibers, Inc., No. 2:03-CV-178-TS, 2006 WL

3 1477 1 0, at *5 (N.D. Ind. Oct. 3 1 , 2006) (citing Bourne, 432 F.3d at 638). Another recent Seventh

Circuit case postulates that a design defect claim under the IPLA requires applying the classic



2008] PRODUCT LIABILITY 1181

Indiana's requirement of proof of a safer, feasible alternative design is

similar to what a number of other states require in the design defect context.

Indeed, that requirement is reflected in Section 2(B) of the Restatement (Third)

of Torts and the related comments.
90

In the specific context of the IPLA, it is clear that design defects in Indiana

are judged using a negligence standard.
91 As such, a claimant can hardly find a

manufacturer negligent for adopting a particular design unless he or she can

prove that a reasonable manufacturer in the exercise of ordinary care would have

adopted a different and safer design. The claimant must prove that the safer,
feasible alternative design was in fact available and that the manufacturer

unreasonably failed to adopt it.
92

In addition, the IPLA adopts "comment k" of the Restatement (Second) of
Torts for all products and, by statute, "[a] product is not defective ... if the

product is incapable of being made safe for its reasonably expectable use, when
manufactured, sold, handled, and packaged properly."

93
Thus, a manufacturer

technically cannot make the "comment k" statutory defense available until and
unless the claimant demonstrates a rebuttal. That raises interesting questions in

light of Indiana's quirky treatment of Trial Rule 56 under Jarboe v. Landmark
Community Newspapers of Indiana, Inc.

94
In federal court, under a Celotex

95

standard, a manufacturer may file a summary judgment motion based upon the
"comment k" defense, challenging the claimant to rebut the defense through
properly designated proof of feasible alternative design. Under Indiana's

treatment of Rule 56, however, the manufacturer bears the burden of

affirmatively showing the unavailability ofthe safer, feasible alternative design.
96

Regardless of the procedure governing the motion itself, the claimant still must

prove the existence of a safer, feasible alternative design to rebut the IPLA's

"comment k" defense.97

formulation of negligence: B [burden ofavoiding the accident] < P [probability of the accident that

the precaution would have prevented] L [loss that the accident if it occurred would cause]. See
Bourne, 452 F.3d at 637; see also United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.

1947) (referencing Judge Learned Hand's articulation of the "B<PL" negligence formula).

90. Restatement (Third) of Torts § 2(B) ( 1 998).

91. IND. CODE § 34-20-2-2 (2004); see also Westchester Fire Ins., 2006 WL 3 147710, at *5;
Bourne, 452 F.3d at 637.

92. To excuse that requirement would be tantamount to excusing the reasonable care statutory

component of design defect liability. By way of example, a manufacturer could not be held liable

under the IPLA for adopting design "A" unless there was proof that through reasonable care the

manufacturer would have instead adopted design "B." To make that case, a claimant must show the

availability of design "B" as an evidentiary predicate to establish before proceeding to the other

"reasonable care" elements.

93. Ind. Code § 34-20-4-4 (2004).
94. 644 N.E.2d 118 (Ind. 1994).

95. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

96. Ind. Trial R. 56.

97. See, e.g., Bourne v. Marty Gilman, Inc., 452 F.3d 632, 637 (7th Cir. 2006); McMahon



1182 INDIANA LAW REVIEW [Vol. 41:1165

During the 2006 survey period, the Indiana Supreme Court in Schultz v. Ford
Motor Co.

9* endorsed the foregoing burden of proof analysis in design defect

claims in Indiana." State and federal courts applying Indiana law have issued

several important decisions in recent years that address design defect claims.
100

3. Warning Defect Theory.—The IPLA contains a specific statutory
provision covering the warning defect theory, which reads as follows:

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.

101

In failure to warn cases, the "unreasonably dangerous" inquiry is essentially the

same as the requirement that the defect be latent or hidden.
102

v. Bunn-o-matic Corp., 150 F.3d 651, 657 (7th Cir. 1998); Whitted v. Gen. Motors Corp., 58 F.3d

1200, 1206 (7th Cir. 1995); Westchester Fire Ins. Co. v. Am. Wood Fibers, Inc., No 2:03-CV-178-

TS, 2006 WL 3147710, at *5 (N.D. Ind. Oct. 31, 2006); Burt v. Makita USA, Inc., 212 F. Supp.
2d 893, 900 (N.D. Ind. 2002).

98. 857 N.E.2d 977 (Ind. 2006).

99. Id. at 985 n. 12 ("For a discussion of the burden ofproof at summaryjudgment in a design

defect claim, see Joseph R. Alberts et al., Survey of Recent Developments in Indiana Product

Liability Law, 39 Ind. L. Rev. 1 145, 1 158-60 (2006)").

100. See, e.g., Bourne, 452 F.3d 632, 633, 638-39 (holding that a football goal post that fell

and injured a college student during a post-game celebration was not unreasonably dangerous as

a matter of law). Bourne is a significant decision for Indiana product liability practitioners because

it reinforces at least four important precepts: (1) "defective condition" and "unreasonably

dangerous" are not interchangeable terms; (2) the concept of "open and obvious" remains relevant

in Indiana product liability law even though it is no longer a stand-alone defense; (3) whether a

product presents an unreasonable danger can and should, under the proper circumstances, be

decided by ajudge as a matter of law; and (4) a claimant's expert testimony must be sufficient, even

at summary judgment stage, to satisfy Indiana's safer, feasible alternative design requirement in

cases in which the claimant pursues a design defect claim. See generally Bourne, 452 F.3d 632;

see also Westchester Fire Ins., 2006 WL 3147710 (dismissing design defect claim based on
allegations that a defectively designed wood flour product spontaneously combusted and caused

a fire because the plaintiff presented no evidence showing there was a safer, reasonably feasible

alternative); Lytle v. Ford Motor Co., 814 N.E.2d 301 (Ind. Ct. App. 2004) (holding, inter alia, that

the theories offered by plaintiffs' opinion witnesses regarding the inadvertent unlatching of a

seatbelt were not reliable and that designated evidence failed to show that Ford's seatbelt design

was defective or unreasonably dangerous); Baker v. Heye-Am., 799 N.E.2d 1 135 (Ind. Ct. App.

2003) (holding that fact issues precluded summaryjudgment with respect to whether the placement

of, and lack of a guard for, a maintenance stop button rendered a glass molding machine defective

or unreasonably dangerous or both).

101. Ind. Code § 34-20-4-2 (2004).
102. See First Nat'l Bank & Trust Corp. v. Am. Eurocopter Corp. {Mow II), 378 F.3d 682,



2008] PRODUCT LIABILITY 1 1 83

Indiana courts have been active in recent years in deciding cases espousing

warning defect theories. Some of those cases include: Toberv. Graco Children 's
Products, Inc.;

103 Ford Motor Co. v. Rushford;
104

Williams v. Genie Industries,

Inc.;
105

Conley v. Lift-All Co.;
106

First National Bank & Trust Corp. v. American
Eurocopter Corp. ("Mow IF); 107 and Birch v. Midwest Garage Door Systems. 108

690 n.5 (7th Cir. 2004). For a more detailed analysis of Inlow II, see Joseph R. Alberts, Survey of

Recent Developments in Indiana Product Liability Law, 38 IND. L. REV. 1205, 1221-27 (2005).

103. 431 F.3d 572 (7th Cir. 2005). For more detailed discussion and commentary about

Tober, see Joseph R. Alberts & James Petersen, Survey ofRecent Developments in Indiana Product
Liability Law, 40 Ind. L. Rev. 1007, 1028-30 (2007).

104. 845 N.E.2d 197 (Ind. Ct. App. 2006), rev'd, 868 N.E.2d 806 (Ind. 2007). For more

detailed discussion and commentary about the reversed Indiana Court of Appeals' s opinion in

Rushford, see Alberts & Petersen, supra note 103, at 1030-32.
105. No.3:04-CV-217CAN,2006WL 1408412 (N.D. Ind. May 19,2006). For more detailed

discussion and commentary about Williams, see Alberts & Petersen, supra note 103, at 1032-33.
106. No. 1 :03-cv-01200-DFH-TAB, 2005 U.S. Dist. LEXIS 15468 (S.D. Ind. July 25, 2005).

107. Mow II, 378 F.3d 682, aff'g In re MowAccident Litig. (Mow I), No. IP 99-0830-C H/K,
2002 U.S. Dist. LEXIS 8318 (S.D. Ind. Apr. 16, 2002). In the Mow cases, a helicopter rotor blade
struck and killed the Conseco general counsel, Lawrence Inlow, as he passed in front of the

helicopter after disembarking. Id. at 685. Because of the helicopter's high-set rotor blades, the

court determined as a matter of law that the deceleration-enhanced blade flap was a hidden danger

of the helicopter and that the manufacturer had a duty to warn its customers of that danger. Id. at

691. The court ultimately held, however, that the manufacturer satisfied its duty to warn Conseco

and Inlow as a matter of law in light of the sophisticated intermediary doctrine. Id. at 692-93.

108. 790 N.E.2d 504 (Ind. Ct. App. 2003). In Birch, a young girl sustained serious injuries

when the garage door closed on her. Id. at 508. The court concluded that the garage door system

at issue was not defective and that a change in an applicable federal safety regulation, in and of

itself, does not make a product defective. Id. at 518. Additionally, the court concluded that there

was no duty to warn plaintiffs about changes in federal safety regulations because the system

manual the plaintiffs received included numerous warnings regarding the type of system installed

and that no additional information about garage door openers would have added to the plaintiffs'

understanding of the characteristics of the product. Id. at 518-19. For a more detailed analysis of

Birch, see Joseph R. Alberts & Jason K. Bria, Survey ofRecent Developments in Indiana Product
Liability Law, 37 IND. L. REV. 1247, 1262-64 (2004); see also Burt v. Makita USA, Inc., 212 F.

Supp. 2d 893 (N.D. Ind. 2002) (rejecting plaintiffs 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 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 plaintiff s injuries were foreseeable

such that defendants had a duty to warn against those circumstances); McClain v. Chem-Lube, 759

N.E.2d 1096 (Ind. Ct. App. 2001) (holding that the trial court should have addressed whether the

risks associated with use of a product were unknown or unforeseeable and whether the defendants

had a duty to warn of the dangers inherent in the use of the product, 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 of the hot welding process). For a more detailed analysis of

Burt and McClain, see Alberts & Boyers, supra note 23, at 1 183-85.



1 1 84 INDIANA LAW REVIEW [Vol. 41 : 1 165

On June 29, 2007, the Indiana Supreme Court decided Ford Motor Co. v.
Rushford.

109
Rushford is noteworthy for its impact on retail sellers of products

in Indiana because it holds that mere retail sellers may not owe a duty to warn,
absent special circumstances, when the seller passes along adequate
manufacturer's warnings.

110

Marilyn Rushford sued Ford Motor Company and Eby Ford Lincoln Mercury
a/k/a Eby Ford Sales, Inc. ("Eby Ford") by filing a two-count complaint. 111

Rushford argued strict product liability in her first count, alleging that a 2002

Ford Focus Wagon she and her husband purchased in 2002 was defective and
unreasonably dangerous because Ford and Eby Ford failed to provide adequate
warnings about the danger the front seat air bags posed to short adults.

112
The

second count alleged negligence against Ford and Eby Ford for not placing a
warning "that the deployment of the air bags could cause injury to adults such as

[Rushford]."
113

Both Ford and Eby Ford moved for summary judgment in the
trial court.

1 14
Both motions were denied.

1 15 On April 1 1 , 2006, the Indiana Court
of Appeals concluded that Ford discharged its duty to warn by providing

adequate warning to Rushford in the owner's manual and on the visor. The court
reversed the trial court's denial of Ford's motion for summaryjudgment. 116 The
court of appeals, however, found that a question of fact existed as to whether Eby
Ford exercised reasonable care under the circumstances by failing to warn or

instruct Rushford to read the air bag warning in the owner' s manual.
x 17

Rushford

did not contest the court of appeals 's ruling in favor of Ford before the Indiana

Supreme Court.
118

Thus, the supreme court was left to decide the scope of duty
owed by a retail seller to an Indiana buyer when a manufacturer's warning is
adequate.

Marilyn Rushford was seventy years old when she and her husband
purchased the 2002 Ford Focus wagon.

119
Rushford informed Eby Ford's

salesman that she had never driven an automobile and that she would not drive
the Focus.

120 A few weeks after their purchase, Rushford sustained serious
personal injuries

121 when her husband collided with another vehicle, causing the

109. 868 N.E.2d 806 (Ind. 2007).

110. See generally id.

111. Id. at 808-09.

112. Id.

113. Id. at 809.

114. Id.

115. Id.

116. Id.

117. Id.

118. Id.

119. Id. at 808. Although last year' s survey article recounted the facts ofRushford, see Alberts

& Petersen, supra note 103, at 1030-32, they are again briefly discussed here to place the court's
decision in context.

120. Ford Motor Co., 868 N.E.2d at 808.

121. Rushford claimed that the collision caused her to suffer the loss of her left thumb, serious



2008] PRODUCT LIABILITY 1 1 85

vehicle's front passenger air bag to deploy.
122

The front passenger visor of the car contained the following warning:

! WARNING
DEATH or SERIOUS INJURY can occur
Children 12 and under can be killed by the air bag

The BACK SEAT is the SAFEST place for children
NEVER put a rear-facing child seat in the front
Sit as far back as possible from the air bag

ALWAYS use SEAT BELTS and CHILD RESTRAINTS123

The warning also contained a pictogram visually demonstrating air bag

deployment against a rear-facing child seat.
124

The owner's manual contained the following warning:

Seating and Safety Restraints
While the system is designed to help reduce serious injuries, it may also
cause abrasions, swelling or temporary hearing loss. Because air bags

must inflate rapidly and with considerable force, there is the risk of death

or serious injuries such as fractures, facial and eye injuries or internal

injuries, particularly to occupants who are not properly restrained or are
otherwise out of position at the time of air bag deployment. Thus, it is

extremely important that occupants be properly restrained as far away
from the air bag module as possible while maintaining vehicle control.

125

Rushford conceded that she saw the visor warning.
126

She claimed, however,

that she did not read the warning closely.
127

She admitted seeing similar

warnings in other vehicles the couple had owned, but thought visor warnings

only pertained to child safety.
128

Similarly, she did not read the warning in the

owner's manual because she did not drive the vehicle and because no one at Eby
Ford told either Rushford or her husband that the manual contained a warning

addressing air bags.
129

As in the trial court, Rushford conceded that the manufacturer's warnings on
the visor and in the owner's manual were adequate.

130 On transfer, the Indiana
Supreme Court noted that manufacturers owe a duty to provide adequate
instructions for safe use and to provide warning as to dangers inherent in

injuries to her left hand and wrist, cervical fractures, and a head laceration. Id. at 808 n.2.

122. Id. at 808.

123. Id.

124. Id.

125. Id.

126. Id.

127. Id.

128. Id.

129. Id.

130. Id. at 810.



1186 INDIANA LAW REVIEW [Vol. 41:1165

improper use.
131

Quoting statutory language in the IPLA, the court wrote that for

a buyer to succeed, he or she must demonstrate "'that the manufacturer or seller

failed to exercise reasonable care under the circumstances."'
132 The adequacy of

a warning is generally reserved as a question of fact; however, the nature of the

duty to warn is a question of law to be answered by the courts.
133

Rushford argued that because the car dealer knew she would not drive the
vehicle, the dealer should have instructed her to read the warnings provided by

Ford.
134

Unlike the Indiana Court of Appeals, which analyzed Rushford' s claim

against the dealer through a breach of duty lens, the Indiana Supreme Court

framed the issue as whether a duty existed in the first instance: "That is to say,

what duty to warn of dangers does a retail seller owe to a user or consumer of a
product when such dangers already have been communicated by the product's
manufacturer."

135
In answering its own question, the court held:

[I]n the absence of any evidence that the product has been modified in

some fashion and that the seller knew or should have known of any such
modification, its duty to warn is discharged where the seller provides the

buyer with the manufacturer's warning of the danger at issue. In other

words absent special circumstances, if the manufacturer provides

adequate warnings of the danger of its products and the seller passes this

warning along to the buyer or consumer, then the seller has no obligation

to provide additional warnings.
136

Because Eby Ford had provided Rushford with the manufacturer's warnings, it
had no duty to provide additional warnings.

137
Doing so would place Eby Ford

in the precarious position of determining which of the manufacturer's particular

warnings may be of unique importance to each consumer and then drawing the
consumer's attention to these specific warnings.

138

Rushford establishes that a retail seller can rely upon adequate warnings
provided by a manufacturer. In reaching its decision, the Rushford court relied

on the heeding presumption recognized in Indiana in Dias v. Daisy-Heddon
139

nearly thirty years ago.
140 Many times, the manufacturer is in the best position

to know and understand the risks inherent in the use and misuse of an unaltered
or unmodified product. In situations as in Rushford, where a retail seller merely

sells a product in the same condition as received from the manufacturer, the
seller, like the manufacturer, should rely on the fact that when adequate warnings

131. Id.

1.32. Id. (quoting Ind. Code § 34-20-2-2 (2004)).
133. Id.

134. Id.

135. Id. at 810-11.

136. Id. at 811.

137. Id.

138. Id. at 81 1-12.

139. 390 N.E.2d 222 (Ind. Ct. App. 1979).

140. Rushford, 868N.E.2dat811.



2008] PRODUCT LIABILITY 1 1 87

are given with a product, they will be read and heeded by a user or consumer.

Rushford f'ails to address circumstances in which the manufacturer' s warnings are

inadequate or the product has been modified after it has left the manufacturer's

control. In such circumstances, a retail seller may still owe a duty to warn or to
provide additional warnings and instructions.

E. Regardless of the Substantive Legal Theory

Indiana Code section 34-20-1-1 provides that the IPLA "governs all actions
that are: (1) brought by a user or consumer; (2) against a manufacturer or seller;

and (3) for physical harm caused by a product; regardless ofthe substantive legal
theory or theories upon which the action is brought."

141
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."
142

In cases where a person who is a user or consumer under the IPLA
sues an entity that is a manufacturer or seller under the IPLA for what is
indisputably a physical harm caused by a product, the IPLA merges and
subsumes all other tort-based theories of recovery such as common law
negligence claims, tort-based breach of warranty claims, and non-IPLA-based

statutory claims.
143

Three cases decided during last year's survey period, Cincinnati Insurance

Cos. v. Hamilton Beach/Proctor-Silex, Inc.,
144
Ryan v. Philip Morris USA, Inc.,

145

141. Ind. Code § 34-20-1-1 (2004) (emphasis added).

142. Id. § 34-20-1-2.

143. The statutory theory applies because in Indiana the causes of action that typically seek

redress for physical harm spring from tort-based theories of recovery. See N.H. Ins. Co. v. Farmer

BoyAG,Inc.,No.IP98-0031-C-T/G,2000U.S.Dist.LEXIS 19502, at *10-1 1 (S.D. Ind. Dec. 19,

2000) (holding that a claim alleging breach of implied warranty in tort has been superceded by

IPLA-based liability, and thus, plaintiff could proceed on a warranty claim so long as it was limited

to a breach of contract theory).

144. No. 4:05 CV 49, 2006 WL 299064 (N.D. Ind. Feb. 7, 2006). There, a fire that allegedly
started in a toaster manufactured by the defendant, Hamilton Beach/Proctor Silex ("Hamilton

Beach"), destroying a couple' s home and personal property. Id. at * 1 . Cincinnati Insurance insured

the couple's home and brought a subrogation action against Hamilton Beach, asserting claims for

negligence, breach of warranty, strict liability, violation of the Magnuson-Moss Warranty Act, and

negligent failure to recall. Id. Hamilton Beach moved to dismiss the negligence, warranty,

Magnuson-Moss, and negligent failure to recall claims. Id. The court agreed that the IPLA

subsumes and incorporates all negligence and tort-based warranty claims. Id. at *2.

145. No. 1:05 CV 162, 2006 WL 449207 (N.D. Ind. Feb. 22, 2006). In Ryan, the widow of
a man who allegedly died as a result of smoking asserted causes of action against several cigarette

manufacturers for product liability, negligence, and fraud. Id. at *1. The defendants argued that

the IPLA provides the sole and exclusive remedy for personal injuries allegedly caused by a

product. Id. at *2. The court agreed, holding that the IPLA unequivocally precludes plaintiffs

common law negligence and fraud claims. Id.



1188 INDIANA LAW REVIEW [Vol. 41:1165

and Fellner v. Philadelphia Toboggan Coasters, Inc. J
46

reinforce the IPLA
merger premise under such circumstances. The merger premise should apply,
however, only to tort-based theories of recovery when a product causes physical
harm. Contract-based warranty theories of recovery are independent from tort-

based warranty theories, and the former undoubtedly fall into the category of

"any other action" that Indiana Code section 34-20-1-2 does not limit.
147

146. No. 3:05-cv-218-SEB-WGH, 2006 WL 2224068 (S.D. Ind. Aug. 2, 2006). The Fellner
case involved a person who was killed when she was ejected from a wooden roller coaster at

Holiday World amusement park. Id. at *1. One of the defendants that the personal representative

ofFellner' s estate sued was Koch Development Corp. ("Koch"), the entity that owned and operated

both Holiday World and the roller coaster involved. Id. Plaintiff sought to hold Koch liable for

negligence, strict liability, and breach of implied warranties. Id. Like the decisions in Cincinnati

Insurance and Ryan, the Fellner decision held that the tort-based implied warranty claim merged

into plaintiffs IPLA-based product liability claims, resulting in dismissal of the breach of implied

warranty claim because it was not a stand-alone theory of recovery. Id. at *4. As noted above,

however, it is important to point out that the Fellner decision employs the term "strict liability" as

if it is synonymous with all IPLA-based product liability claims. Id. It is not. The IPLA imposes

a negligence standard in all product liability claims relying upon a design or warning theory to

prove defectiveness, while retaining strict liability (liability despite the exercise of "all reasonable

care") only for those claims relying upon a manufacturing defect theory. Ind. Code § 34-20-2-2

(2004); see also Mesman v. Crane Pro Servs., 409 F.3d 846, 849 (7th Cir. 2005) ("Under Indiana's

products liability law, a design defect can be made the basis of a tort suit only if the defect was a

result of negligence in the design . . . ."); First Nat'l Bank & Trust Corp. v. Am. Eurocopter Corp.
{Mow II), 378 F.3d 682, 690 n.4 (7th Cir. 2004) ("Both Indiana's 1995 statute ... and its 1998
statute abandoned strict liability in design defect and failure to warn cases. Hence, unlike

manufacturing defects, for which manufacturers are still held strictly liable, claims of design defect

and failure to warn must be proven using negligence principles."); Conley v. Lift-All Co., No. 1 :03-

cv-01200-DFH-TAB, 2005 U.S. Dist. LEXIS 15468, at *12-13 (S.D. Ind. July 25, 2005) ("The

IPLA effectively supplants [the plaintiff s] common law claims because all ofhis claims are brought

by a user or consumer against a manufacturer for physical harm caused by a product. Plaintiffs

common law claims will therefore be treated as merged into the IPLA claims."); Bourne v. Marty

Gilman, Inc., No. l:03-cv-01375-DFH-VSS, 2005 U.S. Dist. LEXIS 15467, at *9 n.2 (S.D. Ind.

July 20, 2005) ("[P]laintiffs may not pursue a separate common law negligence claim [for design

defect]. Their negligence claim is not dismissed but is more properly merged with the statutory

claim under the IPLA, which includes elements of negligence."), aff'd, 452 F.3d 632 (7th Cir.

2006); Miller v. Honeywell Int'l, Inc., No. IP98-1742C-M/S, 2002 U.S. Dist. LEXIS 20478, at *38

(S.D. Ind. Oct. 15, 2002), aff'd, 107 Fed. Appx. 693 (7th Cir. 2004); Birch v. Midwest Garage Door

Sys., 790 N.E.2d 504, 518 (Ind. Ct. App. 2003); 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),

vacated, 806 N.E.2d 776 (Ind. 2004). Thus, when interpreting the Fellner decision, practitioners

should recognize that the court merged the tort-based breach of implied warranty claim into the

IPLA claim even though only plaintiffs manufacturing defect theory involves "strict liability."

147. Fellner, 2006 WL 2224068, at *4; see also Farmer Boy AG, 2000 U.S. Dist. LEXIS
19502, at * 1 0- 1 1 (holding that a claim alleging breach of implied warranty in tort has been

superceded by IPLA-based liability, and thus, plaintiff could proceed on a warranty claim so long



2008] PRODUCT LIABILITY 1 1 89

A potential conflict between Indiana Code sections 34-20-1-1 and 34-20-1-2
might exist, however, in cases in which the factual circumstances disqualify a

claim from being brought under the IPLA yet a product nevertheless causes the
physical harm for which the plaintiff seeks redress. In recent years, courts have

made no mention of the possibility of a conflict between the two provisions and
have had little trouble allowing claims involving plaintiffs and defendants that

are otherwise outside the IPLA's scope to exist when a product has caused
physical harm.

148
In those instances, practitioners are left to ponder to what

degree section 34-20-1 -2' s admonition against limiting "any other action"

conflicts with section 34-20- 1-1's apparent requirement that all claims for

physical harm caused by a product "regardless of the substantive legal theory or
theories upon which the action is brought" be merged into the IPLA. Legislative

action may be the only way to definitively resolve the issue.

n. Statutes of Limitation and Repose

The IPLA contains a statute of limitation and a statute of repose for product
liability claims. Indiana Code section 34-20-3-1 provides:

(a) This section applies to all persons regardless of minority or legal

disability. Notwithstanding [Indiana Code section] 34-11-6-1, this
section applies in any product liability action in which the theory of

liability is negligence or strict liability in tort.

(b) Except as provided in section 2 of this chapter, a product liability

action must be commenced:

(1) within two (2) years after the cause of action accrues; or

(2) within ten (10) years after the delivery of the product to the

initial user or consumer.

However, 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

as it was limited to a breach of contract theory).

148. See, e.g. , Ritchie v. Glidden Corp., 242 F.3d 7 1 3 (7th Cir. 2000); Goines v. Fed. Express

Corp., No. 99-CV-4307-JPG, 2002 U.S. Dist. LEXIS 5070 (S.D. 111. Jan. 8, 2002) (applying

Indiana law); Kennedy v. Guess, Inc., 806 N.E.2d 776 (Ind. 2004); Coffman v. PSI Energy, Inc.,

815 N.E.2d 522 (Ind. Ct. App. 2004). In a case decided during the 2006 survey period, Dutchmen

Manufacturing, Inc. v. Reynolds, 849 N.E.2d 516 (Ind. 2006), the Indiana Supreme Court allowed

a negligence claim based upon section 388 of the Restatement (Second) of Torts to proceed against

a tenant's predecessor and a landlord in a case involving personal injuries sustained as a result of

an alleged failure to warn the successor tenant about a known defect in the scaffolding. Id. at 5 1 8-

21. However, the scaffolding was assembled and installed by the predecessor tenant in a manner

that affixed it to the ceiling beams of the leased building. Id. at 520-22. Therefore, the case does

not appear to involve any "product liability" claims because the injury does not appear to have

occurred as the result of any "product" placed in the stream of commerce. Id. at 522-23.



1 190 INDIANA LAW REVIEW [Vol. 41 : 1 165

149
accrues.

Product liability cases involving asbestos products, however, have a unique

statute of limitations. Indiana Code section 34-20-3-2(a) provides that "[a]
product liability action based" upon either "property damage resulting from

asbestos" or "personal injury, disability, disease, or death resulting from

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

150
That rule applies, however, "only to product liability

actions against . . . persons who mined and sold commercial asbestos," and 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."
151

A. Statute ofLimitations

In Frye v. MedComp, Inc., 152 Frye filed a product liability suit in an Indiana
state court, alleging that a catheter inserted for chemotherapy on May 14, 2004,
had malfunctioned causing chemotherapeutic agents to leak into his neck and

chest resulting in permanent damage.
153 He filed his complaint on May 12, 2006,

naming MedComp, Inc. as a defendant. 154 On September 18, 2006, the trial court
issued an alias summons.

155 The alias summons, still listing "MedComp, Inc."
as the defendant, was served on Medical Components, Inc. on October 19, 2006,
whose counsel appeared and removed the case to federal court on November 13,
2006, based upon diversity jurisdiction.

156

Medical Components moved to dismiss Frye's suit because it had not been
properly named as a defendant and because the two-year statute of limitations in
Indiana Code section 34-20-3- 1(b) barred the claim. 157 The district court agreed,
reasoning that Indiana law requires both the filing of the complaint and the

tendering of the summons to the clerk within the statutory time period to timely
commence suit. 158 The court noted that Frye realized at some point that serving

149. Ind. Code § 34-20-3-1 (2004).

150. Id. § 34-20-3-2(a).

151. Id. § 34-20-3-2(d). For a discussion of the asbestos-related statute of repose, see Ott v.

AlliedSignal, Inc., 827 N.E.2d 1144 (Ind. Ct. App. 2005).

152. No. l:06-cv-1635-SEB-VSS, 2007 U.S. Dist. LEXIS 5672 (S.D. Ind. Jan. 24, 2007).

153. Id. at*l.

154. Id. at*2.

155. Id. MedComp, Inc. appeared by counsel and filed an answer. Id. MedComp, Inc., an

Indiana corporation, was a separate and distinct company, unrelated to the proper defendant who

supplied the catheter, Medical Components, Inc. Id. at *5. Curiously, however, the plaintiff never

amended his complaint to name the proper defendant, even though causing an alias summons to be

issued and served on the correct defendant. See id. at *2.

156. Id.

157. Id. at*3-6.

158. Id. at *6 (citing IND. TRIAL R. 3).



2008] PRODUCT LIABILITY 1 191

MedComp, Inc. was a mistake. 159 Regardless, he never attempted to amend his
complaint to name the proper defendant and the proper defendant was not served
until 159 days after the complaint was filed, well outside the 1 20-day time period

permitted by Federal Rule of Civil Procedure 4(m).
160 As a result, the suit was

untimely under the Federal Rules of Civil Procedure, the Indiana Trial Rules, and

thelPLAaswell.
161

B. Statute ofRepose

As was the case during prior survey periods, the current survey period saw
more cases interpreting and applying the IPLA's statute of repose to bar asbestos

claims against companies that did not mine asbestos. On August 31, 2007, the
Indiana Court of Appeals handed down a series of cases arising out of plaintiff
Bill Littlefield' s exposure to asbestos.

162 Two of these cases discuss and apply
the statute of repose, Dap, Inc. v. Akaiwa

162,
and THAgriculture and Nutrition,

LLC v. Akaiwa. 164

Littlefield was exposed to asbestos some time between June 1, 1976, and
August 1, 1982.

165 As a result of his exposure, he was diagnosed with
mesothelioma on July 17, 2004.

166
Prior to the diagnosis Littlefield had no

reason to believe that he had been exposed to asbestos.
167 On January 10, 2005,

Littlefield filed a complaint naming numerous defendants, including TH
Agriculture and Nutrition, LLC ("THAN"). 168 Littlefield died on July 25, 2005,

159. Id. at*8.

160. Id. at *5 n.4, *8.

161. Id. at*8-9.

1 62. The series of cases decided concurrently by the court of appeals includes Asbestos Corp.

v. Akaiwa, 872 N.E.2d 1095 (Ind. Ct. App. 2007); Dap, Inc. v. Akaiwa, 872 N.E.2d 1098 (Ind. Ct.

App. 2007); TH Agric. & Nutrition, LLC v. Akaiwa (THAN), 872 N.E.2d 1104 (Ind. Ct. App.
2007); THAgric. & Nutrition, LLC v. Nevius, 872 N.E.2d 708 (Ind. Ct. App. 2007) (unpublished
table decision); and Sun Chem v. Akaiwa, 872 N.E.2d 708 (Ind. Ct. App. 2007). Dap, Inc. and

THAN substantively discuss and apply the statute of repose. See Dap, Inc., 872 N.E.2d at 1098;
THAN, 872 N.E.2d at 1 104. Although the defendant in Asbestos Corp. raised the statute of

limitations defense, the court of appeals did not substantively discuss or analyze it. 872 N.E.2d at

1095-98. The single issue the court found dispositive was whether the plaintiff had presented

sufficient evidence of exposure to Asbestos Corp. Ltd. ("ACL") asbestos to survive summary

judgment. Id. at 1095, 1098. The court of appeals found that the plaintiff had not presented

sufficient evidence and reversed the trial court's denial of ACL' s motion for summary judgment.

Id. at 1098. The remaining two decisions, THAgric. & Nutrition, LLC v. Nevius and Sun Chem v.
Akaiwa, are unpublished and are not included in this survey.

163. 872 N.E.2d 1098 (Ind. Ct. App. 2007).

164. 872 N.E.2d 1 104 (Ind. Ct. App. 2007).

165. Mat 1105.
166. Id.

167. Id.

168. Id. TH Agriculture and Nutrition, LLC ("THAN") "was formed in 1998 and is the



1 192 INDIANA LAW REVIEW [Vol. 41 : 1 165

and Akaiwa was substituted as his representative to maintain the actions.
169

THAN moved for summary judgment asserting the suit was time-barred. 170

Akaiwa resisted, contending that THAN was a distributor and/or supplier of raw
asbestos fiber mined by other entities and therefore was a mining company,

which would not allow THAN to avail itself of the ten-year statute of repose in
Indiana Code section 34-20-3- 1.

171
In other words, Akaiwa tried to avoid the

statute of repose by relying on Indiana Code section 34-20-2-4
172

claiming that

THAN was a miner under the IPLA because it stood as the principal distributor
in Indiana for a bankrupt asbestos mining company over whom Indiana court's
could not exercise jurisdiction.

173 The trial court apparently agreed and denied
THAN' s motion. 174

Observing that Akaiwa had ignored Indiana' s statute of repose, the court of
appeals was not persuaded.

175
Relying on AlliedSignal v. Off,

176
the court

acknowledged that Indiana's Supreme Court previously decided that the specific

language chosen by the Indiana General Assembly when it drafted section 2177

represented a conscious intent only to subject those entities that mined and sold

commercial asbestos to the section.
178

All other entities that merely sold

asbestos-containing products were subject to section 1 and claims against them

could be extinguished by the passage of time and the IPLA's ten-year statute of

successor by merger to TH Agriculture and Nutrition, Inc., formerly known as Thompson-Hayward
Chemical Company ("THCC")." Id. at 1004. THCC did not mine asbestos or manufacture
asbestos-containing products. Id. At one time THCC did distribute various grades of chrysotile
asbestos fibers to portions of the United States between 1960 and 1980 on behalf of Carey-

Canadian Mines, Ltd. and maintained a distribution facility for a few years in the mid-1960s in

Indianapolis, Indiana. Id. At the time of the suit, Carey was in bankruptcy. Id.

169. Mat 1106.
170. Id.

171. Id. at 1106-08.

172. Indiana Code section 34-20-2-4 states:

If a court is unable to hold jurisdiction over a particular manufacturer of a product or

part of a product alleged to be defective, then that manufacturer's principal distributor

or seller over whom a court may hold jurisdiction shell be considered,/or the purposes

of this chapter, the manufacturer of the product.

Ind. CODE § 34-20-2-4 (2004) (emphasis added).

173. THAN, 872 N.E.2d at 1 106.

174. Id.

175. Id. at 1 106-07.

176. 785 N.E.2d 1068, 1073 (Ind. 2003) (holding the language used represents the conscious

intent of the legislature).

1 77. Indiana Code section 34-20-3 contains the statutes of limitations and repose for product

liability actions. The general product liability statute oflimitations and repose is codified at Indiana

Code section 34-20-3-1 or "section 1." Certain asbestos-related cases are exempted from Indiana's

ten-year statute of repose and are governed by Indiana Code section 34-20-3-2 or "section 2."

178. THAN, 872 N.E.2d at 1 107.



2008] PRODUCT LIABILITY 1 193

repose.
179

In short, the "[s]upreme [c]ourt's express holding in Ott
m

foreclosefd]

the application of section 2 to non-miner defendants."
181 The court noted that

Akaiwa did not dispute that THAN did not mine asbestos. 182 Moreover, the court
noted that Akaiwa' s argument that THAN, a distributor, should be treated as a
miner under Indiana Code section 34-20-2-4 was rejected a year earlier in Briggs
v. Griffin Wheel Corp.,

183
which Akaiwa had not attempted to distinguish. 184

Because THAN was not an asbestos miner, Akaiwa' s claim was governed by the
ten-year statute of repose.

185
Littlefield was last exposed to asbestos more than

ten years before filing suit, thus section 1 's statute of repose barred the action.
186

In Dap, Inc. v. Akaiwa,
181

the court of appeals also found that the statute of

repose barred Akaiwa' s claims against Dap, Inc. ("Dap").
188 Between 1960 and

1977, Dap manufactured an asphalt sealant and elastic glazing compound, both
of which contained asbestos fibers.

189
Dap, however, "did not mine or sell raw

asbestos."
190 Sometime between 1980 and 1982, the decedent used sealants

manufactured by Dap, presumably the Dap sealants decedent used between 1980
and 1982 contained asbestos fibers.

191
Relying on the ten-year statute of repose,

Dap moved for summary judgment. 192 The trial court, however, found that the
ten-year statute of repose did not apply.

193

As in the companion case, TH Agriculture and Nutrition, LLC, discussed
above, the court of appeals again found AlliedSignal v. Ott

m
controlling.

195 The

179. Id.

180. <9tf,785N.E.2datl073.

181. THAN, 872 N.E.2d at 1108.

182. Id.

183. 851 N.E.2d 1261, 1263-64 (Ind. Ct. App. 2006). For a detailed discussion and

commentary about Briggs, see Alberts & Petersen, supra note 103, at 1042-43.
184. THAN, 872 N.E.2d at 1 108.

185. Mat 1109.
1 86. Id. Although not raised by Akaiwa, amici Indiana Trial Lawyers' Association ("ITLA")

and Defense Trial Counsel of Indiana ("DTCI") participated in the appeal to address whether

section 1 and section 2 violated article I, section 23 of the Indiana Constitution. Id. at 1 108. The

court of appeals again found the On decision controlling because it had previously addressed the
constitutionality of the application of the statute of repose to non-miners. Id. at 1 108-09. Thus,

the constitutionality ofthe statute oflimitations and repose were beyond the scope of its permissible

review. Id.

187. 872 N.E.2d 1098 (Ind. Ct. App. 2007).

188. Mat 1103.
189. Id. at 1099.

190. Id.

191. Id.

192. Id.

193. Id.

194. 785 N.E.2d 1068, 1073 (Ind. 2003).

195. Dap, Inc., 872 N.E.2d at 1 100-04. Although Akaiwa did not timely file his appellee's

brief, the court of appeals nevertheless addressed the case on its merits. Id. at 1 100.



1 194 INDIANA LAW REVIEW [Vol. 41 : 1 165

court reasoned that because Dap was not a miner, section 2
196

was inapplicable. 197

Thus, the ten-year statute of repose contained in section 1 barred it because the

action was commenced more than twenty years after the decedent's last possible
exposure to asbestos.

198
Noting that Ott left open the possibility that the statute

of repose '"might be unconstitutional as applied to the plaintiff if a reasonably

experienced physician could have diagnosed [the plaintiff] with an asbestos-

related illness or disease within the ten-year statute of repose, yet [the plaintiff]

had no reason to know of the diagnosable condition until the ten-year period had
expired,'"

199
the court then turned to the constitutionality of the statute of

repose.
200

In the trial court, Akaiwa argued that a reasonable physician could have
diagnosed the decedent "within ten years after his exposure, even [though] doing

so would have involved a medically unethical procedure."
201

Nonetheless,

Akaiwa conceded that the decedent had no reason to seek medical diagnosis or
treatment until he developed signs and symptoms of an asbestos-related illness

in June 2004.
202 The court recognized that its 2005 decision in Jurich v. John

Crane, Inc.
203

expressly rejected the arguments made by Akaiwa in the trial court
because Otf s requirement of a manifested asbestos related illness or disease that

could have been diagnosed by a reasonably skilled physician
204

"refers to a

disease that is a clinically-recognized symptomatic condition, or one that could

have been detected by a competent physician conducting a routine examination

of the patient."
205

It excludes asymptomatic conditions or those that could only

be discovered using "extreme and medically unsound or unethical measures."
206

Because the decedent exhibited no symptoms until June 2004, approximately
twenty-two years after his last exposure to asbestos, Akaiwa' s argument that

section 1 was unconstitutional as applied did not persuade the court of appeals.
207

196. Recall that section 1 refers to Indiana Code section 34-20-3-1 and section 2 refers to

section 34-20-3-2.

197. Dap, toc.,872N.E.2datll01.

198. Id.

199. Id. (quoting AlliedSignal v. Ott, 7785 N.E.2d 1068, 1075 (Ind. 2003)).

200. Id.

201. 14. at 1101-02.

202. Id.

203. 824 N.E.2d 777, 780-83 (Ind. Ct. App. 2005).

204. Ott, 785N.E.2dat 1076.

205. Dap, Inc., 872 N.E.2d at 1 102 (quoting Jurich, 824 N.E.2d at 783).

206. Id.

207. Id. at 1 102-03. As in TH Agriculture and Nutrition, LLC ("THAN"), 872 N.E.2d. at
1 108-09, amici Indiana Trial Lawyers' Association ('TTLA") and Defense Trial Counsel of Indiana

("DTCI") participated in the appeal to address whether section 1 and section 2 violated article I,

section 23 of the Indiana Constitution. Dap, Inc., 872 N.E.2d at 1 102. With text nearly identical

to that used in THAN, the court again passed on the constitutionality question finding that the issue

was beyond the scope of its permissible review. Id.



2008] PRODUCT LIABILITY 1 1 95

HI. Evidentiary Presumption for Compliance with State-of-the-Art
and Government Standards

The IPLA, via Indiana Code section 34-20-5-1, entitles a manufacturer or
seller to a rebuttable presumption that the product causing the physical harm is
not defective and that the product's manufacturer or seller is not negligent if,

before the sale by the manufacturer, the product:

(1) was in conformity with the generally recognized state of the art

applicable to the safety of the product at the time the product was

designed, manufactured, packaged, and labeled; or

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

specifications established, adopted, promulgated, or approved by the

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

Indiana.
208

A. Compliance with State-of-the-Art

The 2007 survey period included the first published opinion by an Indiana
court giving a rebuttable presumption jury instruction based on Indiana Code
section 34-20-5-1 for a state-of-the-art product. In Bourke v. Ford Motor Co.,

209

plaintiff Anna Bourke brought suit against Ford on behalf of the Estate of
Richard Bourke.

210
Bourke alleged that the 2000 Ford Explorer was defectively

designed because it possessed inadequate rollover resistance.
211 The court

provided the jury with instructions defining state-of-the-art and that Ford was
entitled to a rebuttable presumption that the Explorer was not defective and that
Ford was not negligent if it had proven that the vehicle was state-of-the-art.

212

The first instruction setting forth the presumption read:

Ford Motor Company has alleged that the 2000 Ford Explorer was
manufactured in conformity with the state of the art. Ford has the

burden of proving this allegation.

If you find that Ford Motor Company has proved by a preponderance of
the evidence that before the 2000 Ford Explorer was sold by them, the
product: was in conformity with the generally recognized state of the art
applicable to the safety of the product at the time the product was
designed, manufactured, packaged and labeled; then you may presume
that the 2000 Ford Explorer was not defective and Ford Motor Company
is not negligent and find for them.

208. Ind. Code § 34-20-5-1 (2004).
209. No. 2:03-CV-136, 2007 U.S. Dist. LEXIS 15871 (N.D. Ind. Mar. 5, 2007).

210. Id. at *2.

211. Id.

212. Mat*2-3.



1 196 INDIANA LAW REVIEW [Vol. 41 : 1 165

However, if Plaintiff has introduced evidence tending to disprove this

proposition then you may, but are not required to, find that the 2000

Ford Explorer was defective.
213

The instruction defining "state of the art" read:

The term "state of the art" is defined as the best technology reasonably
feasible at the time the product was designed, manufactured, packaged

and labeled.

Whether a product was manufactured in conformity with the generally

recognized state of the art you may consider: evidence of the existing
level of technology, industry standards, the lack of other advanced

technology and the product's safety record at the time the product was

designed, manufactured, packaged and labeled.
214

The jury returned a verdict in favor of Ford.
215

Bourke sought a new trial
claiming that there was insufficient evidence to support the state of the art
instructions and because the instructions failed to adequately differentiate

between state of the art and industry custom.
216

The court began by addressing whether its instructions were correct
statements of the law and, if not, whether any error caused Bourke to suffer any

prejudice.
217

Bourke agreed that the court's rebuttable presumption instruction

was correct. Thus, the court had little difficulty finding that the instruction was
not error.

218
Bourke, however, asserted that the state of the art instruction was

erroneous because it failed to distinguish between state of the art and industry

custom.
219

The court disagreed, reasoning that the instruction at issue defining
state of the art is nearly identical to an instruction approved in Indianapolis

Athletic Club, Inc. v. Alco Standard Corp.
220 As in Indianapolis Athletic Club,

the reference to industry standards was within the context of a list containing
several factors that a jury could consider.

221
Because the court concluded that

both instructions contained accurate recitations of applicable law, there was no
error and a new trial was not warranted.222

Bourke next claimed that the there was insufficient evidence to support

213. Id.

214. Id. at*3.

215. Id.

216. Id.

217. Id. at*4-5.

218. Id. at*5-6.

219. Id.

220. Id. at *6 (citing Indianapolis Athletic Club, Inc. v. Alco Standard Corp., 709 N.E.2d

1070, 1072 (Ind. Ct. App. 1999)).

221. Id. at*6-8.

222. Id. at *7-8.



2008] PRODUCT LIABILITY 1 197

giving the two instructions.
223 The court interpreted Bourke's argument as one

contending "that the jury's verdict was against the . . . weight of the evidence."
224

Bourke argued that Ford had elicited no trial testimony that its rollover resistance

system was "state of the art" per se.
225 The court found that Bourke's

interpretation was too narrow because whether the actual phrase "state ofthe art"

was brought out during trial did not necessarily prove or disprove the vehicle in

fact was state-of-the-art.
226

Again relying on Indianapolis Athletic Club, the

court reasoned that Ford was only required to

present evidence that would allow a reasonablejuror to find that its 2000

Explorer's rollover resistance used the best technology reasonably

feasible. To do this, [Ford] was required to present evidence of the
existing level of technology, industry standards, the lack of other

advanced technology and the product' s safety record at the time the 2000

Ford Explorer was designed and manufactured.
227

The court was satisfied that both sides presented ample evidence to explain the
state of technology and scientific knowledge with respect to vehicle design,

development, and testing as it existed when the 2000 Ford Explorer was designed
and manufactured.

228
Thus, a reasonable juror, the court determined, could

conclude that the 2000 Ford Explorer was state-of-the-art and find in Ford's

favor.
229

B. Compliance with Government Standards

In Flis v. Kia Motors Corp. ("Flis I"),
230

Judge Tinder correctly predicted the

Indiana Supreme Court's decision in Schultz v. Ford
131

before the supreme court

223. Id. at*8.

224. Id.

225. /</. at*8-10.

226. Id. at *9-10.

227. Id. at *10 (citation omitted).

228. Id.

229. Id. at*10-ll.

230. No. l:03-cv-1567-JDT-TAB, 2005 WL1528227 (S.D. Ind. June 20, 2005).

23 1

.

During the 2006 survey period, the Indiana Supreme Court decided Schultz v. FordMotor

Co., 857 N.E.2d 977 (Ind. 2006). Id. at 979. The plaintiff ("Schultz") was injured when he lost

control of his Ford Explorer. The vehicle rolled over and the roof collapsed, rendering Schultz a

quadriplegic. Id. Schultz and his wife sued Ford, alleging negligence and defective roof design.

Id. Ford denied liability and defended the suit. Id. During trial Ford relied in part on its

compliance with Federal Motor Vehicle Safety Standard ("FMVSS") 216, id., which governed

minimum vehicle roof strength. Id. at 979 n. 1 . The trial court gave an instruction based on Indiana

Code section 34-20-5-1. The instruction provided that Ford was entitled to a rebuttable

presumption that it was not negligent and the Ford Explorer was not defective by virtue of its

compliance with FMVSS 216. Id. at 979-80. The jury rendered a verdict in favor of Ford. Id. at
979. Schultz contended that the giving of the instruction was reversible error. Id. at 98 1 . The



1 198 INDIANA LAW REVIEW [Vol. 41 : 1 165

granted transfer.
232 As in Schultz, Flis involved the rollover of a sport utility

vehicle, a claim of inadequate roof strength, and the vehicle's compliance with

Federal Vehicle Motor Safety Standard ("FMVSS") 216.
233

Judge Tinder,

declined to follow the court of appeals' s decision in Schultz, determining that the

Indiana Supreme Court would decide the case differently, and instructed thejury

on Kia's compliance with FMVSS 216 and state-of-the-art.234 Following the
adverse verdict, Jane and Richard Flis filed a motion for a new trial on June 30,
2005.

235
Plaintiffs argued, among other things, that the court erred in giving a

final instruction based upon Indiana Code section 34-20-5-1 and Kia's
compliance with FMVSS.236 Judge Tinder waited until the Indiana Supreme
Court' s ruling in Schultz before issuing his decision denying plaintiffs' motion.

237

He recognized that the Schultz decision mandates as follows:

([A] presumption is properly given "continuing effect" under the last

sentence of Indiana Evidence Rule 301 by the trial court instructing the

Indiana Supreme Court disagreed and affirmed the trial court. Id. at 989. Relying on the last

sentence contained in Indiana Evidence Rule 301, that presumptions shall have continuing effect,

the Indiana Supreme Court rejected the bursting bubble theory ofpresumptions. Id. at 982-85. The

court acknowledged that the presumption recognized by Indiana Code section 34-20-5-1 was not

a presumption in a traditional legal sense. Id. at 985. Nonetheless, giving "continuing effect" to

a presumption through a jury instruction furthered the policies that created the presumption in the

first place. Id. at 986. By authorizing the instruction the court reasoned that it "recognize[d] the

policy embodied by the [legislature in [the governmental compliance statute], regardless of

whether the provision conformfed] to the conventional definition of a legal 'presumption.'" Id. at

986. Finally, the Schultz court addressed the concern that the use of the word "presumption" in an

instruction could have a prejudicial effect on juries. Id. at 986-87. The court suggested that it

might be less prejudicial to use words such as "infer" or "assume"; however, the inclusion of the

verb "presume" and the noun "presumption" in the jury instruction at issue did not amount to

reversible error because on balance the instruction was fair to both parties. Id. at 987. Therefore,

the court affirmed the trial court's decision to give the jury instruction. Id. at 989.

232. Flis I, 2005 WL 1528227, at *1 1.
233. Id.at*\-2.

234. Id. at *1 1-16.

235. Flis v. Kia Motors Corp. (Flis II), No. 1 :03-CV-1567-JDT-TAB, 2006 U.S. Dist. LEXIS

89436, at *2 (S.D. Ind. Dec. 8, 2006). Plaintiffs' motion for new trial asserted two grounds for

relief—juror misconduct and the giving of a governmental compliance instruction. Id. As to their
allegations of misconduct, the plaintiffs argued that they were entitled to a new trial due to "juror

non-disclosure, deceit, and misconduct during voir dire" that resulted in bias against them. Id.

Although not germane to this product liability survey, Judge Tinder summoned the juror who

plaintiffs claimed engaged in the deceitful conduct. See id. at 7. After briefing and a full hearing

on the merits, including examination of the juror, the court concluded that no juror misconduct had

in fact occurred as the juror neither withheld any information during voir dire nor allowed

deliberations to be tainted by any outside influences. Id. at *5-16.

236. Id. at* 16.

237. /</. at*17-18.



2008] PRODUCT LIABILITY 1 199

jury that when a basic fact is proven, the jury may infer the existence of
a presumed fact.) In so holding, the [c]ourt cited this court's Entry on

Governmental-Compliance and State-of-the-Art Instruction in this case.

Therefore, under Indiana law as established by the Indiana Supreme

Court in Schultz, the giving of [a final instruction based on compliance

with governmental standards] was not error.
238

Schultz and Flis establish the propriety of a governmental compliance

instruction in cases where specific codes, standards, regulations, or specifications

apply. Another federal case involving Ford decided during the survey period,

Bourke v. FordMotor Co.
,

239
suggests that the nexus between the compliance and

the issues to be tried must be a close fit or the compliance presumption may not
be available. Indeed, evidence of compliance may not even be admissible.

Bourke was filed in federal court in the Northern District of Indiana. There,

the plaintiff filed a motion in limine to bar any evidence that the 2000 Ford

Explorer at issue met any standards that were unrelated to the plaintiffs specific

claim that the vehicle possessed inadequate rollover resistance.
240

Although it

conceded that no federal motor vehicle safety standard specifically addressed

vehicle rollover resistance, Ford nevertheless argued that it should be able to

introduce evidence of the vehicle's compliance with other federal safety

standards to gain the benefit of the rebuttable presumption of non-defectiveness

in Indiana Code section 34-20-5- 1.241 Judge Lozano opined that the language of
the statute was clear and unambiguous, and he therefore resolved the issue by
parsing the language of Indiana Code section 34-5-20- 1. 242 He posited that the
word "applicable" immediately preceded "codes, standards, regulations, or
specifications."

243
Quoting Black's Law Dictionary, he wrote, "[applicable is

defined as '[f]it, suitable, pertinent, related to, or appropriate; capable of being

applied.'"
244 The court then reiterated that not all federal motor vehicle safety

standards applied to the defect plaintiff alleged in the case.
245 The court reasoned

that the plain meaning of the word "applicable" required Ford to establish that
it complied with a specific standard or regulation regarding the defect at issue,

rollover resistance, if it wanted to avail itself of the rebuttable presumption.
246

The court then turned to both Schultz
241

and Cansler v. Mills
24

* to support its

238. Id. at *18 (citations omitted).

239. No. 2:03-CV-136, 2007 U.S. Dist. LEXIS 1860 (N.D. Ind. Jan. 8, 2007), reh'g denied,

No. 2:03-CV-136, 2007 U.S. Dist. LEXIS 15871 (N.D. Ind. Mar. 5, 2007).

240. Id. at*2.

241. Id. at*2-3.

242. Id. at *4-5.

243. Id. at*3.

244. Id. at *4 (quoting Black's Law Dictionary 98 (6th ed. 1990)).
245. Mat*4-5.

246. Id. at *5.

247. 857 N.E.2d 977 (Ind. 2006).

248. 765 N.E.2d 698 (Ind. Ct. App. 2002), overruled on other grounds, 857 N.E.2d 977 (Ind.



1 200 INDIANA LAW REVIEW [Vol. 4 1 : 1 1 65

decision.
249 The court observed that in both Cansler and Schultz the

manufacturers were able to rely on the presumption due to compliance with the

safety standard governing the specific component or defect at issue.
250

Therefore,

the court concluded that compliance with any safety standard unrelated to

rollover resistance was irrelevant and posed a risk of confusing and misleading

the jury.
251 The pretrial ruling effectively barred evidence of compliance with

any federal motor vehicle safety standard.

No Indiana appellate court has yet to squarely address whether compliance
with "codes, standards, regulations, or specifications" not directly "applicable"

to the specific defect claimed by a plaintiff entitles a manufacturer or seller to the

benefit of the rebuttable presumption contained within Indiana Code section 34-
5-20-1. As Judge Lozano seems to have correctly observed, a plain reading of
Indiana Code section 34-5-20-1 lends support to his pretrial ruling as
"applicable" immediately precedes "codes, standards, regulations, or

specifications." Thus, putting aside evidentiary rules, "applicable" connotes, if

not requires, the existence of some connection or relevance to the issues in the
case for the presumption to take hold. As yet unresolved, however, is just how
"applicable" the codes, standards, regulations, or specifications must be before

the compliance presumption arises.

The pretrial ruling in Bourke may have gone a little too far because
compliance could be admissible for another purpose, such as to support a claim

of state-of-the-art. Even though the presumption may not arise, the admissibility
of compliance is a separate and distinct issue. For instance, industry custom is

one factor to be considered by a jury to determine whether a product is state-of-

the-art.
252

Accordingly, complying or failing to comply with appropriately
promulgated and approved codes or standards may tend to prove or disprove
whether a product is state-of-the-art. On the other hand, perhaps the fact that no
code, standard, regulation, or specification exists addressing the specific claim

at issue may help prove or disprove the existing level of technology or lack of
other more advanced technology.

IV. 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

2006). In Cansler, the issue was non-deployment of a vehicle's airbag in a collision. Id. at 701.

FMVSS 208 specifically governs vehicle air bags. Id. at 705.
249. Bourke, 2007 U.S. Dist. LEXIS 1860, at *5-8.

250. Id.

251. Id. at*7-8.

252. See id. at *6-8; Indianapolis Athletic Club v. Ako Standard Corp., 709 N.E.2d 1070, 1074

(Ind. Ct. App. 1999).



2008] PRODUCT LIABILITY 1201

proceeded to make use of the product and was injured."
253

Incurred risk is a

defense that "involves a mental state of venturousness on the part of the actor and

demands a subjective analysis into the actor's actual knowledge and voluntary

acceptance of the risk."
254

It is a "complete" defense in that it precludes a

defendant's IPLA liability (in design and warning defect cases) if it is found to
apply to a particular set of factual circumstances.

255

There were no significant published decisions during the survey period that

addressed incurred risk.

B. Misuse

Indiana Code section 34-20-6-4 provides that 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."
256

Knowledge of a product's defect is not an essential element of establishing the
misuse defense. The facts necessary to prove the defense of "misuse" many
times may be similar to the facts necessary to prove either that the product is in
a "condition . . . not contemplated by reasonable" users or consumers under

Indiana Code section 34-20-4-1 (l)257 or that the injury resulted from "handling,
preparation for use, or consumption that is not reasonably expectable" under

Indiana Code section 34-20-4-3

.

258

253. Ind. Code § 34-20-6-3 (2004).

254. Cole v. Lantis Corp., 714 N.E.2d 194, 200 (Ind. Ct. App. 1999) (citing Schooley v.

Ingersoll Rand, Inc., 631 N.E.2d 932, 939 (Ind. Ct. App. 1994)).

255. Vaughn v. Daniels Co. (W. Va.), Inc., 841 N.E.2d 1 133, 1 146 (Ind. 2006) ("Incurred risk

acts as a complete bar to liability with respect to negligence claims brought under the [I]PLA."

(citing Ind. Code §§ 34-51-2-1 to -19). On that point, the Vaughn decision is consistent with

several earlier cases, including Baker v. Heye-America, 799 N.E.2d 1135, 1145 (Ind. Ct. App.

2003), Hopper v. Carey, 716 N.E.2d 566, 575 (Ind. Ct. App. 1999), and Cole, 714 N.E.2d at 194,

all of which stated that incurred risk is a complete defense in Indiana. Cf. Mesman v. Crane Pro

Servs., 409 F.3d 846 (7th Cir. 2005); Coffman v. PSI Energy, Inc., 815 N.E.2d 522 (Ind. Ct. App.

2004). Although it held that no IPLA-based claims survived summaryjudgment, the Vaughn court

did allow a common law negligence claim to proceed against Daniels and, accordingly, allowed the

issue of Vaughn's fault to remain in the case for the jury's consideration solely in connection with

the negligence claim. Vaughn, 841 N.E.2d at 1 145-46. For a discussion about the nature of the

negligence claim that the court allowed to survive summary judgment, see Alberts & Petersen,
supra note 103, at 1037-39.

256. Ind. Code § 34-20-6-4 (2004). Stated in a slightly different way, misuse is a "'use for
a purpose or in a manner not foreseeable by the manufacturer.'" Henderson v. Freightliner, LLC,

No. l:02-cv-1301-DFH-WTL, 2005 U.S. Dist. LEXIS 5832, at *10 (S.D. Ind. Mar. 24, 2005)

(quoting Barnard v. Saturn Corp., 790 N.E.2d 1023, 1030 (Ind. Ct. App. 2003)).

257. Ind. Code § 34-20-4-1(1) (2004).
258. W.§ 34-20-4-3.



1 202 INDIANA LAW REVIEW [Vol. 4 1 : 1 1 65

Recent decisions in cases such as Barnard v. Saturn Corp.
259

and Burt v.

Makita USA, Inc.
260

have resolved the applicability of the misuse defense as a

matter of law. On the other hand, a 2005 case, Henderson v. Freightliner,
LLC 261 held that the incurred risk issue should be presented to a jury.262

Although the Vaughn case involved the court's resolution of a "misuse" issue,

the court addressed plaintiff's purported "misuse" not as an IPLA-based defense

to a product liability claim, but rather as an element of the jury's consideration

in connection with Vaughn's common law negligence claim.263

The statutory definition of "misuse" quoted above appears to consider only

259. 790 N.E.2d 1023 (Ind. Ct. App. 2003). Barnard was a wrongful death action against the

manufacturers of an automobile and its lift jack. Id. at 1026-27. Plaintiffs decedent was killed

when he used a lift jack to prop up his vehicle while he changed the oil. Id. at 1027. The jack gave

way, trapping the decedent underneath the car. Id. Both manufacturers provided safety warnings

regarding proper use of the jack that the decedent did not follow. Id. at 1026-27. 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. Id. at 1030. The trial court

granted summary judgment to the defendants based upon product misuse, and the Estate appealed.

Id. at 1025. 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 the injuries that he sustained." Id. at 1031. As such, the resolution of the case

by the Barnard court was practically identical to how the court in Coffman resolved an incurred risk

question. For a more detailed analysis ofBarnard, see Alberts & Bria, supra note 108, at 1286-87.
260. 212 F. Supp. 2d 893 (N.D. Ind. 2002). In Burt, the plaintiff was injured by a circular

saw's blade guard. Id. at 894. 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

suggested] that the accident was unforeseeable, caused by a very unusual set of factual

circumstances.

Id. 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 section 34-20-4- 1(1) had not been met, which necessarily also meant that

the defense of "misuse" had been established as a matter of law. Id. ; see also Alberts & Boyers,
supra note 23, at 1 195-96.

261. No. l:02-cv-1301-DFH-WTL, 2005 U.S. Dist. LEXIS 5832 (S.D. Ind. Mar. 24, 2005).

262. In Henderson, defendants argued that plaintiff Henderson began working on a diesel

truck's air suspension system without first bleeding the air pressure, which was a misuse because

the truck's service manual required that mechanics, among other things, "disconnect the leveling

valve and exhaust all air from the air springs." Id. at *5, *10. Judge Hamilton decided that the

disputed issues offact noted above precluded him from granting summaryjudgment that the misuse

defense foreclosed recovery as a matter of law. Id. at *1 0-1 4.

263. Vaughn v. Daniels Co. (W. Va.), Inc., 841 N.E.2d 1133, 1145-46 (Ind. 2006). For a

more detailed discussion about the negligence claim that the Vaughn court allowed to survive

against Daniels, see Alberts & Petersen, supra note 103, at 1037-39.



2008] PRODUCT LIABILITY 1203

the objective reasonableness of the foreseeability of the misuse by the seller and

not the character of the misuser's conduct. That would seem to confirm that

"misuse" should not be considered "fault" and, therefore, misuse should be a

complete defense as is incurred risk.
264

Recent decisions, however, continue to

reach inconsistent results when it comes to that issue. Three decisions, Burt v.
Makita USA, Inc.,

265 Morgen v. Ford Motor Co.,266 and Indianapolis Athletic
Club, Inc. v. Alco Standard Corp.

261
have concluded that misuse is a complete

defense. On the other hand, decisions in cases such as Chapman v. Maytag
Corp.

26* and Barnard v. Saturn Corp.
269

have determined that the degree of a

user' s or a consumer' s misuse is a factor to be assessed in determining that user'

s

or consumer's "fault," which must then be compared with the "fault" of the

alleged tortfeasor(s).
270

There were no significant published decisions during the survey period that

addressed misuse.

C. Modification and Alteration

Indiana Code section 34-20-6-5 provides:

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

harm is a modification or alteration of the product made by any person
after the product's delivery to the initial user or consumer if the

modification or alteration is the proximate cause ofphysical harm where
the modification or alteration is not reasonably expectable to the

seller.
271

264. The districtjudge in Chapman v. Maytag Corp. , 297 F.3d 682 (7th Cir. 2002), recognized

as much. He also recognized that the Indiana General Assembly did not specifically exempt misuse

from the scope of the comparative fault requirement. Id. at 689.

265. 212 F. Supp. 2d 893, 897 (N.D. Ind. 2002).

266. 762 N.E.2d 137, 143 (Ind. Ct. App. 2002), aff'd in part, vacated in part, 797 N.E.2d

1146 (Ind. 2003).

267. 709 N.E.2d 1070, 1072 (Ind. Ct. App. 1999).

268. 297 F.3d 682 (7th Cir. 2002). In Henderson, Judge Hamilton cited Chapman for the

proposition that "[t]he misuse defense is not necessarily a complete defense but is an element of

comparative fault." Henderson v. Freightliner, LLC, NO. l:02-cv-1301-DFH-WTL, 2005 U.S.

Dist. LEXIS 5832, at *10 (S.D. Ind. Mar. 24, 2005) (citing Chapman, 297 F.3d at 689). For a more

detailed analysis of Chapman, see Alberts & Boyers, supra note 23, at 1 196-97.
269. 790 N.E.2d 1023 (Ind. Ct. App. 2003). According to the Barnard court, "the defense of

misuse should be compared with all other fault in a case and does not act as a complete bar to

recovery in a products liability action." Id. at 1029 (citing Chapman, 297 F.3d at 689). The

Barnard court determined that the 1995 Amendments to the IPLA required all fault in cases to be

comparatively assessed. Id. at 1029-30. "By specifically directing that the jury compare all 'fault'

in a case, we believe that the legislature intended the defense of misuse to be included in the

comparative fault scheme." Id. at 1030; see also Alberts & Bria, supra note 108, at 1286-87.
270. See IND. CODE § 34-20-8-1 (2004).
271. Id. § 34-20-6-5. Before the 1995 Amendments to the IPLA, product modification or



1204 INDIANA LAW REVIEW [Vol. 41 : 1 165

The modification/alteration defense is incorporated into the basic premise for

product liability in Indiana as set forth in Indiana Code section 34-20-2-1.

Indeed, the Indiana Code provides:

[A] person who sells, leases, or otherwise puts into the stream of
commerce any product in a defective condition unreasonably dangerous

to any user or consumer or to the user's or consumer's property is

subject to liability for physical harm caused by that product to the user
or consumer or to the user's or consumer's property if . . . 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.
272

The interplay between these two statutes as it relates to a product's condition is
important for courts and practitioners to understand. As briefly discussed above
in Part ID. 1 ., evidence of a product's condition after leaving the manufacturer's

or seller' s control is significant both as an IPLA-mandated threshold requirement

for which the plaintiff bears the burden of proof, as well as an IPLA-based

affirmative defense for which the defendant bears the burden of proof.
273

In a product liability case in Indiana, the IPLA requires the plaintiff, in order
to establish his or her prima facie case, to demonstrate, first, that the product was
in a defective condition at the time the seller or manufacturer conveyed it to

another party,
274

and, second, that the product reached him or her "without
substantial alteration."

275
If a plaintiffs evidence is insufficient to meet those

requirements as a matter of law either before or at trial, he or she has failed to

alteration operated as a complete defense. See Foley v. Case Corp., 884 F. Supp. 313, 315 (S.D.

Ind. 1994).

272. Ind. Code § 34-20-2-1 (2004).

273. Gaskin v. Sharp Electronics, Corp., No 2:05-CV-303, 2007 U.S. Dist. LEXIS 72347
(N.D. Ind. Sept. 26, 2007), addressed above in Part I.D. 1 . in connection with manufacturing defect

allegations, briefly addressed the "alteration" defense. Recall that Gaskin involved allegations that

a television caused a fatal house fire. Id. at *2. The court recognized that plaintiffs had to prove

that the allegedly defective condition in the television at issue existed at the time it left the

manufacturer's control in order to satisfy an essential element of their prima facie case. Id. at *22.

Whether there was a substantial alteration in the television between the time when it left the

manufacturer's control and the time when it came into the plaintiffs possession, according to the

court, was an affirmative defense to the foregoing essential element of the plaintiffs prima facie

case. Id. at *23. The plaintiffs in Gaskin pointed to evidence that the television was purchased only

two months prior to the fire, it was purchased from Best Buy in pristine condition, it was not

mishandled by anyone, and it was never in need of repair. Id. at *24. Accordingly, the court

concluded that there was sufficient evidence to allow the jury to ultimately determine whether

plaintiffs could satisfy their burden of establishing a prima facie case and whether defendants could

satisfy their burden of demonstrating the existence of a substantial alteration. Id.

21A. Ind. Code. § 34-20-4-1 (2004).

275. Id. §34-20-2-1.



2008] PRODUCT LIABILITY 1205

establish a prima facie product liability case.

The defendant, on the other hand, can and should introduce evidence to

establish either that the product was substantially altered before it reached the

plaintiff or that it was substantially modified or altered after delivery to the initial

user or consumer and such modification or alteration proximately caused the

damages alleged. Establishing the former negates a prima facie component of

plaintiffs case. Establishing the latter provides the basis for the statutory

modification/alteration defense. In many cases, the same evidence will prove
both points, such as a situation in which the initial user or consumer substantially

altered the product before selling it to the plaintiff.

V. Comparative Fault and the IPLA

The IPLA incorporates, in large measure, Indiana's comparative fault
principles for all product liability actions. A defendant cannot be "liable for
more than the amount of fault . . . directly attributable to that defendant," nor can

a defendant "be heldjointly liable for damages attributable to the fault of another

defendant."
276

In addition, the IPLA requires the trier of fact to compare the
"fault of the person suffering the physical harm, as well as the fault of all others

whom caused or contributed to cause the harm."277 For purposes of the IPLA,
"fault" is

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

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

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

(2) A finding under [Indiana Code section] 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.
278

The IPLA also contemplates assessment of fault for non-parties:

In assessing percentage of fault, the jury shall consider the fault of all

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

279

In Dorman v. Osmose, Inc.,2* plaintiff Dorman was wearing shorts while
"building a deck with lumber treated with chromated copper arsenate ("CCA"),

a preservative and pesticide manufactured by Osmose."
281

"[H]e accidentally

276. Id. § 34-20-7-1.

277. Id. § 34-20-8-l(a).

278. Id. § 34-6-2-45(a).

279. Id. § 34-20-8- 1(b).

280. 873 N.E.2d 1 102 (Ind. Ct. App. 2007).

281. Mat 1105.



1206 INDIANA LAW REVIEW [Vol. 41 : 1 165

struck his leg against a piece of freshly cut wood, and several splinters lodged in

his right shin."
282 As a result of his injuries, Dorman sued Osmose, "alleging

negligence and strict liability."
283 Osmose filed its answer, alleging, among other

things, that Dorman was contributorily negligent.
284 The case went to trial in

2006.
285 At the close of trial, the court gave final instructions to the jury,

including the following instructions, quoted in relevant part, concerning

contributory negligence and fault apportionment:

[Osmose] contends that the [Dormans'] damages and injuries were

caused by the negligence of [p]laintiff, Mark Dorman. Contributory
negligence is the failure of a [p]laintiff to use reasonable care, when that
failure contributes to the loss [p]laintiff claims and is a proximate cause

of such loss. [Osmose] has the burden to prove by a preponderance of

the evidence that [p]laintiff, Mark Dorman, was negligent.

Next, if [Osmose] is not at fault or if [p]laintiff Mark Dorman' s fault is
greater than 50 percent, then you must return your verdict for [Osmose]

and against the [Dormans]; and no further deliberation is required.
286

The jury returned a verdict in favor of Osmose.287

Part of the Dormans' appeal contended that the trial court abused its

discretion by tendering the foregoing contributory negligence and fault

apportionment instructions.
288

"Specifically, the Dormans argue[d] that because
Osmose claimed that its product was not dangerous and did not provide a
warning to wear long pants when working with CCA-treated wood, [Dorman
could not] be contributorily negligent for not taking precautions to avoid splinters

from wood treated with CCA."289 Osmose responded that there was evidence in
the record showing that "any type of wood splinter could have caused
[Dorman' s] injuries" and that Dorman failed to wear long pants even though he
knew that he should wear long pants to avoid splinters.290

The court agreed with Osmose that the evidence supported the instruction.

282. Id.

283. Id.

284. Id.

285. Id.

286. Id. at 1109-10.

287. Mat 1106.
288. Id. at 1 109. The case has an involved procedural history, including a previous appeal.

Id. at 1 105. In addition to the comparative fault issue, Dorman raised two other issues on appeal,

one involving the trial court's decision not to replace one of the jurors at trial and the other

involving the trial court's denial of Osmose's motion to admit certain language from a brief

submitted in a prior appeal. Id. at 1 104.

289. Id. at 1110.

290. Id.



2008] PRODUCT LIABILITY 1207

Quoting Peavler v. Board of Commissioners,
191

the Dorman court wrote that
"'[contributory negligence is conduct on the part of the plaintiff, contributing

as a legal cause to the harm he has suffered, which falls below the standard to

which he is required to conform for his own protection'" and that "the plaintiffs
negligence must either be the proximate cause or a concurring or co-operating

proximate cause of the plaintiffs injury."
292

Further citing to section 466 of the

1965 version ofthe Restatement (Second) Torts, the Dorman court identified two
types of contributory negligence:

(a) an intentional and unreasonable exposure of himself to danger

created by the defendant's negligence, of which danger the plaintiff

knows or has reason to know, or

(b) conduct which, in respects other than those stated in Clause (a), falls

short of the standard to which the reasonable man should conform in
order to protect himself from harm.

293

According to the court, the evidence presented "a situation that fits squarely into

paragraph (b)."
294

In doing so, the Dorman court cited, again, to Peavler, placing
the following quotation in parentheses: "'It is sufficient if the injury resulting

from [plaintiffs] failure to exercise ordinary care is such as was usual and

therefore might have been expected.'"
295 The court pointed to testimony by

physicians to the effect that foreign objects in the skin can cause cellulitis, that

"wood splinter[s] of any kind . . . can cause acute infections such as that
experienced by [Dorman]," and that there were not any known, published reports

demonstrating "'that a CCA-treated splinter is somehow different in terms of its
toxic potential then [sic] is an untreated wood splinter.'"296 The court also noted
that Dorman "testified that he had worked with pressure treated wood eighty or
ninety times beginning in high school,"

297
"that he had been taught to keep his

arms and legs covered while working with wood to protect against splinters,"298

and that he had both been admonished for, and prohibited from, wearing shorts

while working at what the court inferred to be a construction job at Indiana

University.
299 The court, therefore, concluded that evidence in the record

supported a contributory negligence jury instruction.
300

The fault apportionment instruction appears to be perfectly consistent with
both the IPLA and the Comparative Fault Act. The same does not seem to be

291. 557 N.E.2d 1077, 1080 (Ind. Ct. App. 1990).

292. Dorman, 873 N.E.2d at 1 1 10.

293. Id. at 1111.

294. Id.

295. Id. (alteration in original) (quoting Peavler, 557 N.E.2d at 1081).

296. Id. at 1110.

297. Id.

298. Id. at 1110-11.

299. Id. at llll.

300. Id.



1208 INDIANA LAW REVIEW [Vol. 41 : 1 165

true for the contributory negligence instruction. Although the appellate panel in

Dorman determined that evidence of record supported the contributory
negligence instruction, the cautionary tale here for practitioners is that such an

instruction does not seem to be readily applicable to a product liability case

accruing, as Dorman' s did, after the Indiana General Assembly specifically

incorporated Indiana's comparative fault principles into the IPLA. The accident

that resulted in Dorman' s injuries occurred on June 23, 1996,
301

well after the

June 30, 1995 effective "accrual" date for applicability of the 1995 amendments

that specifically incorporated Indiana's comparative fault principles into the

IPLA.
302 The two principal authorities cited by the Dorman panel, Peavler and

the Restatement (Second) of Torts, preceded the 1995 IPLA amendments that
incorporated comparative fault principles into the IPLA.

Because the action did not involve an entity to which traditional notions of

contributory negligence would still apply,
303

use of the terms "comparative" and

"fault" both appear more consistent with the IPLA than do the terms
"contributory" and "negligence." Indeed, as Indiana courts have recognized,

"common law characterizations of [a plaintiff's] conduct as contributorily
negligent as a matter of law mean little in the context of comparative fault other
than that [the plaintiff] must be assessed some portion of his damages."

304
Use

of the term "fault" as opposed to "negligence" also appears more appropriate

because, as noted above, the current IPLA defines "fault" by employing different
terms than does the contributory negligence instruction.

VI. Federal Preemption

"'[F]ederal law preempts state law in three situations: (1) when the federal
statute explicitly provides for preemption; (2) when Congress intends to occupy
the field completely; and (3) where state law stands as an obstacle to the

accomplishment and execution of the full purposes and objections of

Congress.'"
305

301. Id. at 1105.

302. Act of Apr. 26, 1995, No. 278, § 7, 1995 Ind. Acts 4051, 4055-56.

303. The contributory fault doctrine in Indiana precludes recovery by a plaintiff if his or her

action or inaction contributed in any way to causing the alleged damages. Comparative fault, on

the other hand, is a mechanism by which juries assign percentages of fault among all parties and

non-parties, including plaintiffs. See generally IND. CODE § 34-5 l-2-7(b) (2004); see also Booker,

Inc. v. Morrill, 639 N.E.2d 358 (Ind. Ct. App. 1994) ("A comparative fault statute . . . reflects a

legislative determination that fairness is best achieved by a relative assessment of the parties'

respective conduct" (citing Robbins v. McCarthy, 581 N.E.2d 929, 932 (1991)). Under Indiana's

current comparative fault scheme, a plaintiffs recovery will be precluded only if his or her fault

exceeds fifty percent. Ind. Code § 34-51-2-6 (2004). Traditional notions of contributory fault

remain applicable in Indiana only in the context of tort claims against governmental entities or

public employees. Id. § 34-51-2-2.

304. Robbins v. McCarthy, 581 N.E.2d 929, 934 (Ind. Ct. App. 1991).

305. Thornburg v. Stryker Corp., No. 1 :05-cv-1378-RLY-TAB, 2007 U.S. Dist. LEXIS 43455,



2008] PRODUCT LIABILITY 1209

Thornburg v. Stryker Corp?
06

determined whether the Food, Drug, and

Cosmetic Act's ("FDCA") Medical Device Amendments ("MDA") preempted
state law product liability claims against the manufacturer of a hip replacement

device.
307

In that case, the plaintiff alleged that the hip replacement manufacturer

"'designed, promoted, marketed, manufactured, assembled and sold'" the

defective hip replacement system and components at issue.
308 The defendant

moved for summary judgment, arguing that the claims were preempted.
309

The manufacturer had applied for FDA approval pursuant to the FDA's pre-
market approval process, and as part of that process, provided supporting data to

the FDA concerning the hip device at issue.310 The allegedly defective device
received FDA approval, which allowed the manufacturer to sell it commercially
within the United States under FDA-imposed conditions.311 The manufacturer
did not alter the FDA-approved design, manufacturing process, or labeling

without approval.
312

The trial court determined that the claims at issue were preempted,
recognizing that theMDAcontains an express provision that provides as follows:

Except as provided in subsection (b) of this section, no State or political

subdivision of a State may establish or continue in effect with respect to
a device intended for human use any requirement -

(1) which is different from, or in addition to, any requirement applicable

under this Act to the device, and

(2) which relates to the safety or effectiveness of the device or to any

other matter included in a requirement applicable to the device under this

Act.
313

The court cited to a Seventh Circuit Court of Appeals holding that the
preemption provision required establishment of the following things as a

condition precedent to preemption:

(1) a requirement that a state establish[es] or continue[s] in effect, with

respect to a device intended for human use; (2) a relevant federal
requirement under the FDCA applicable to the device at issue; and (3)
a state requirement that is different from or in addition to the federal

*5 (S.D. Ind. July 3, 2007) (quoting JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 918 (7th Cir.
2007)).

306. Thornburg, 2007 U.S. Dist. LEXIS 43455.

307. Id. at*l-4.

308. Id. at*l.

309. Id at *2.

310. Id. at*4.

311. Id.

312. Id.

313. 21 U.S.C. § 360k(a) (2000).



1210 INDIANA LAW REVIEW [Vol. 41:1165

requirement.
314

The Thornburg court easily concluded that the first two conditions had been

established. The IPLA satisfied the first condition because it governs all actions
that are brought by a user or consumer of a product against the manufacturer or

seller of products that cause injury or harm.
315 The MDA provided the "relevant

federal requirement under the FDCA."316

According to the court, the third condition merited more treatment. With

regard to that third condition, the court wrote:

[I]f a state law parallels a federal law requirement then federal law

cannot preempt such state law. "In order for a state requirement to be

parallel to a federal requirement . . . [Thornburg] must show that the
requirements are genuinely equivalent. State and federal requirements

are not genuinely equivalent if a manufacturer could be held liable under

the state law without having violated the federal law."
317

The court ultimately concluded that the IPLA and the FDCA requirements
were not equivalent because a manufacturer could be held liable under state law

without having violated federal law.
318

Conclusion

Even though more than a decade has passed since the Indiana General

314. Thornburg, 2007 U.S. Dist. LEXIS 43455, at *6 (alterations in original) (citing

McMullen v. Medtronic, Inc., 421 F.3d 482, 487 (7th Cir. 2005)).

315. Id. (citing Ind. CODE § 34-20-1-1 (2004)).

316. Id.

317. Id. at *6-7 (citation omitted) (alteration in original) (quoting McMullen, 42 1 F.3d at 488).

The plaintiff argued "that preemption is not appropriate 'under a strong presumption against

preemption,'" and she relied solely on a U.S. Supreme Court case, Medtronic v. Lohr. Id. at *7

(citing Medtronic v. Lohr, 518 U.S. 470 (1996)). In Lohr, the U.S. Supreme Court assessed

preemption under the FDA's pre-market approval process 21 U.S.C. § 510(k), which requires "a

significantly shorter review process" than the section at issue (21 U.S.C. § 360(e)) and is available

only to medical devices that are substantially similar to devices currently on the market. Id. at *7-8.

The district court held that plaintiffs' reliance upon Lohr was misplaced because the application

process for the product in question (21 U.S.C. § 360(e)) imposed standards far more rigorous than

those at issue in Lohr. Id.

318. Id. at *9. The court noted that Thornburg failed to assert the only claim that would not

be preempted—that Stryker "failed to 'conform with the FDA requirements prescribed by the [pre-
market approval].'" Id. at *8 (quoting In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig.,
455 F. Supp. 2d 709, 716-17 (N.D. Ohio 2006) (emphasis added)). All three of the aforementioned

factors were satisfied and Thornburg' s state law claims were, therefore, preempted in their entirety.

Id. The court remarked that "the prevailing majority view among courts which have assessed

preemption involving a § 360(e) review ofmedical devices is that federal law preempts state claims

similar to Thornburg' s." Id. at *8 (citing In re Sulzer Hip Prosthesis & Knee Prosthesis Liab.
Litig., 455 F. Supp. 2d at 716-17).



2008] PRODUCT LIABILITY 121

1

Assembly made sweeping revisions to the IPLA in 1995, the 2007 survey period
marked another busy, productive year both for judges interpreting Indiana

product liability law and for lawyers helping to shape and guide it.