Indiana Law Review Survey of Recent Developments IN Indiana Product Liability Law Joseph R. Alberts* James Petersen** Robert B. Thornburg' Introduction With respect to Indiana product liability litigation, most observers probably will remember the 2009 survey period' more for questions that courts did not answer than for those they did answer. Indeed, it is apparent that practitioners and judges who deal with product liability matters in Indiana continue their struggle to come to grips with the intended scope ofthe Indiana Product Liability Act (IPLA).^ This Survey does not attempt to address in detail all of the cases decided during the survey period that involve product liability issues.^ Rather, it examines selected cases that discuss the more important substantive concepts. This Survey also provides some background information, context, and commentary when appropriate. * Litigation Counsel, The Dow Chemical Company, Midland, Michigan and Dow AgroSciences LLC, Indianapolis. B.A., cum laude, 1991, Hanover College; J.D., magna cum laude, 1994, Indiana University School of Law—Indianapolis. ** 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 Maurer School of Law—Bloomington. The authors greatly appreciate the research and drafting assistance provided by Christina Laun Fugate, Attorney, Ice Miller LLP, Indianapolis, B.A., magna cum laude, 2004, Butler University, J.D, cum laude, 2007, Indiana University School of Law-Indianapolis. *** Member, Frost Brown Todd LLC, Indianapolis. B.S., cum laude. Ball State University; J.D., 1996, Indiana University Maurer School of Law—Bloomington. 1. The survey period is October 1, 2008, to September 30, 2009. 2. IND. Code §§ 34-20-1-1 to 9-1 (2008). 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. This Article does not address those decisions in detail because ofspace constraints, even though they may be interesting to Indiana product liability practitioners. See generally Indianapolis-Marion County Pub. Library V. Charlier Clark & Linard, P.C, 900 N.E.2d 801 (Ind. Ct. App. 2009) (addressing the differences between damage caused by a defective product as opposed to defective rendering of services in a general negligence context), trans, granted, opinion vacated, 919 N.E.2d 547 (Ind. 2009), remandedby929^.E2di 838 (Ind. Ct. App. 2010), adoptedby"No. 06S05-0907-CV-332, 2010 Ind. LEXIS 397 (Ind. June 29, 2010). 874 INDIANA LAW REVIEW [Vol. 43:873 I. The Scope OF THE IPLA The Indiana General Assembly first enacted the IPLA in 1 978."^ It originally governed claims in tort utilizing both negligence and strict liability theories. In 1983, the General Assembly amended it to apply only to strict liability actions.^ In 1995, the General Assembly amended the IPLA to encompass once again theories of recovery based upon both strict liability and negligence.^ In 1998, the General Assembly repealed the entire IPLA and recodified it, effective July 1, 1998.^ The 1998 recodification did not make substantive revisions; it merely redesignated the statutory numbering system to make the IPLA consistent with the General Assembly's reconfiguration of 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 ofthe substantive legal theory or theories upon which the action is brought."^ 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";^ (2) a defendant that is a manufacturer or a "seller . . . engaged in the business of selling [a] producfV° (3) "physical harm caused by a product'V^ (4) a product that is "in a defective condition unreasonably dangerous to [a] user or consumer" or to his property; ^^ and (5) a product that "reach[ed] the user or consumer without substantial alteration in [its] condition." ^^ Indiana Code section 34-20-1-1 makes clear that the IPLA governs 4. Pub. L. No. 141, § 28, 1978 Ind. Acts 1308, 1308-10. 5. Pub. L. No. 297, § 1, 1983 Ind. Acts 1815. 6. Pub. L. No. 278, §§ 1-7, 1995 Ind. Acts 405 1,405 1-56; 5ee Progressive Ins. Co. v. Gen. Motors Corp., 749 N.E.2d 484, 487 n.2 (Ind. 2001). 7. Pub. L. No. 1, 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 (2008). 9. Id. § 34-20-2-1(1). Indiana Code section 34-20-1-1 identifies a proper IPLA claimant as a "user" or "consumer." Id. § 34-20-1-1(1). Indiana Code section 34-20-2-1(1) requires that IPLA claimants be "in the class ofpersons that the seller should reasonably foresee as being subject to the harm caused by the defective condition." Id. 1 0. Indiana Code section 34-20- 1 - 1 (2) identifies proper IPLA defendants as "manufacturers" or "sellers." Id. § 34-20-1-1(2). 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 comer lemonade stand operators and garage sale sponsors fi^om IPLA liability. Id 11. Id §34-20-1-1(3). 12. Id §34-20-2-1. 13. Id. § 34-20-2-1(3). Indiana Pattern Jury Instruction § 7.03 sets out a plaintiflPs burden of proof in a product liability action. The instruction requires a plaintiff to "prove each of the 2010] PRODUCT LIABILITY 875 and controls all claims that satisfy these five requirements, "regardless of the substantive legal theory or theories upon which the action is brought."^"^ A. "User" or "Consumer" The language the General Assembly employs in the IPLA is important for determining who qualifies as an IPLA claimant. Indiana Code section 34-20-1-1 provides that the IPLA governs claims asserted by "users" and "consumers."^^ 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.'^ "User" has the same meaning as "consumer."'^ Several published decisions in recent years construe the statutory definitions of "user" and "consumer."'^ following propositions by a preponderance ofthe 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 a 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 ofthe condition in which the defendant sold the product; 7. The plaintiff or plaintiffs 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 (2008). 15. Id 16. Id § 34-6-2-29. 17. Id §34-6-2-147. 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" ofan electrical transmission system because his employer was the ultimate user and he was an employee of the "consuming entity"); Estate ofShebel v. Yaskawa Elec. Am., Inc., 7 1 3 N.E.2d 275, 279 (Ind. 1 999) (holding that a "user or consumer" includes a distributor who uses the product extensively for demonstration purposes). For a more detailed analysis ofButler, see Joseph R. Alberts & David M. Henn, Survey ofRecent 876 INDIANA LAW REVIEW [Vol. 43:873 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."^^ 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 for 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." Courts in Indiana have been relatively quiet since 2006 when it comes to interpreting the terms "user" or "consumer."^' One federal trial court decision during the 2009 survey period, however, addressed the issue. In Pawlik v. Industrial Engineering& Equipment Co., Inc. ,^^ the plaintiffwas injured loading a crate containing electrical duct heaters onto the truck of his employer. Circle R Mechanical, Inc. Industrial manufactured the duct heaters and encased them Developments in Indiana Product Liability Law, 34 IND. L. REV. 857, 870-72 (2001). For a more detailed analysis of Estate ofShebel, see Joseph R. Alberts, Survey ofRecent Developments in Indiana Product Liability Law, 33 iND. L. REV. 133 1, 1333-36 (2000). 19. iND. Code § 34-20-2-1(1) (2008). 20. Id. 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 ofpersons that the seller should reasonably foresee as being subject to the harm caused by the defective condition. 2 1 . 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 ofbringing 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 ofthe 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 ofthe 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 installation." Id. at 1139. 22. No. 2:07-CV-220, 2009 WL 857476 (N.D. Ind. March 27, 2009). 2010] PRODUCT LIABILITY 877 in a wooden shipping crate.^^ The duct heaters were ultimately scheduled to be delivered to and installed at a facility in Portage, Indiana.^"^ As the plaintiff was loading the crate onto the truck, at least one of the wooden slats on the crate detached, causing the plaintiffto fall backward and sustain injury.^^ The plaintiff filed a complaint against Industrial alleging that the crate was defective.^^ Industrial filed a motion for summaryjudgment arguing, among other things, that the plaintiff was not a user or consumer under the IPLA.^^ The court began its analysis by turning to Indiana Code section 34-20-1-1, which requires a plaintiff to qualify as a user or consumer in order to recover under the IPLA.^^ The court found that neither the plaintiff nor Circle R were "users" or "consumers."^^ The products to be delivered and installed—^the duct heaters—^were not "used" or "consumed" by the plaintiff.^^ Circle R and the plaintiffwere simply the intermediaries charged with transport and installation.^' Under these circumstances, the court concluded that the IPLA claim failed because neither the plaintiff nor his employer qualified as a user or consumer.^^ B. "Manufacturer" or "Seller" For purposes ofthe IPLA, "'[m]anufacturer' . . . means a person or an entity who designs, assembles, fabricates, produces, constructs, or otherwise prepares a product or a component part ofa product before the sale ofthe product to a user or consumer."^^ "'Seller' . . . means a person engaged in the business of selling or leasing a product for resale, use, or consumption."^"^ Indiana Code section 34- 20-2-1(2) 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. Mat*l. 24. Id. 25. Id, 26. Mat*2. 27. Id 28. Mat*4. 29. Mat*5. 30. Id 31. Id 32. Id 33. IND. Code § 34-6-2-77(a) (2008). 34. Id §34-6-2-136. 35. 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 section 33-1-1.5-2(3), the predecessor to Indiana Code section 34-20-2-1, imposes a threshold requirement that an entity must have sold, leased, or otherwise placed a defective and unreasonably dangerous product into the stream of commerce before IPLA liability can attach and before that entity can be considered a "manufacturer" or "seller"); Del Signore v. Asphalt Drum Mixers, 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 878 INDIANA LAW REVIEW [Vol. 43:873 Courts hold sellers liable as manufacturers in two ways. First, a seller can be held liable as a manufacturer if the seller fits within the definition of "manufacturer" found in Indiana Code section 34-6-2-77(a), 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.^^ 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" "[i]f a court is unable to hold jurisdiction over a particular manufacturer" and if the seller is the "manufacturer's principal distributor or seller."^^ Practitioners also must be aware that when the theory of liability is based upon "strict liability in tort,"^^ Indiana Code section 34-20-2-3 provides that an entity that is merely a "seller" and cannot otherwise be deemed a "manufacturer" 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 ofRecentDevelopments in Indiana Product Liability Law, 36 IND. L. Rev. 1 165, 1 170-72 (2003). 36. iND. Code § 34-6-2-77(a) (2008). 37. Id § 34-20-2-4. 38. Id. 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 *14-1 5 (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 plaintiffassumed that "jurisdiction" referred to the power ofthe court to hear a particular case. Id. at *12. The defendant argued that the phrase equates to "personal jurisdiction." Id. 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. 39. The phrase "strict liability in tort," to the extent that it 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 a negligence standard governs cases utilizing a design defect or a failure to warn theory, not a "strict liability" standard. Ind. Code § 34-20-2-2 (2008). 2010] PRODUCT LIABILITY 879 is not liable and is not a proper IPLA defendant."^^ This has been a relatively active area ofproduct liability law in recent years and a number of recent Indiana decisions, particularly from Indiana federal courts, have addressed the statutory definitions of"seller" and "manufacturer.'"** The 2009 survey period continued that trend, producing three more decisions from Indiana federal courts in this context. The first case, Duncan v.M& MAuto Service, Inc.^^ involved the explosion of a van's natural gas fuel tank. M & M, the defendant, installed the natural gas system on the van."*^ During the installation, M & M used a fuel conversion kit purchased from Jasper Engine."^ M&M also performed routine maintenance on 40. Id. § 34-20-2-3. In Ritchie v. Glidden Co., 242 F.3d 713, 725-26 (7th Cir. 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). Id. Glidden also did not meet any ofthe other statutory definitions or circumstances under which it could be deemed a manufacturer. Id. The Ritchie court's citation omits what is now Indiana Code section 34-20-2-3, a potentially significant omission. 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. The IPLA makes it clear that liability without regard to the exercise ofreasonable care (strict liability) applies only to product liability claims alleging a manufacturing defect theory, and a negligence standard controls claims alleging design or warning defect theories. See, e.g., Burt v. Makita USA, Inc., 212 F. Supp. 2d 893, 899 (N.D. Ind. 2002); see also Alberts & Boyers, supra note35, at 1173-75. 41. E.g., Mesman v. Crane Pro Servs., 512 F.3d 352, 356 (7th Cir. 2008) (finding that defendant company rebuilt a crane and altered its design to enable it to be operated fi"om ground level rather than fi-om an overhead cab could not avoid IPLA liability under those circumstances); LaBonte v. Daimler-Chrysler, No. 3 :07-CV-232, 2008 WL 5 1 33 1 9, * 1 -2 (N.D. Ind. Feb. 22, 2008) (finding that a defendant company that purchased the assets of seat belt manufacturer and subsequently discharged debts in bankruptcy was entitled to summary judgment because it was found to be neither the manufacturer of the seat belt nor liable as a successor corporation to the manufacturer). For a detailed discussion about Mesman and LaBonte, see Joseph R. Alberts et al.. Survey ofRecentDevelopments in IndianaProductLiabilityLaw, 42 Ind.L.Rev. 1093, 1098-1 102 (2009). See also Fellner v. Philadelphia Toboggan Coasters, Inc., No. 3:05-cv-218-SEB-WGH, 2006 WL 2224068 (S.D. Ind. Aug. 2, 2006) (involving a girl who was killed when she was ejected fi-om a wooden roller coaster operated as an attraction at Holiday World amusement park); Thomburg v. Stryker Corp., No. 1 :05-cv- 1 378-RLY-TAB, 2006 WL 1 84335 1 (S.D. Ind. June 29, 2006) (involving a plaintiff who filed product liability and medical malpractice claims after hip replacement surgery). 42. 898 N.E.2d 338 (Ind. Ct. App. 2008). 43. Mat 340. 44. Id 880 INDIANA LAW REVIEW [Vol. 43:873 the natural gas system.'^^ The plaintiff was injured when gas escaped while he was filling the van's fuel tank."^^ The plaintiff alleged both that the fuel tank should have been equipped with a redundant check valve that would have prevented gas from escaping and that M & M should have known that this valve was necessary ."^^ M & M filed a motion for summary judgment arguing that under Indiana Code section 34-20-2-3, it could not be subject to a product liability claim because it did not manufacture the fuel system."^^ The plaintiff argued that although M & M was not the actual manufacturer of the natural gas system, M & M should be treated as an "apparent manufacturer" because M & M's invoice for the fuel system did not state the name of the fuel system's manufacturer."^^ Under Indiana Code section 34-20-2-3, however, a product liability action based on the doctrine of strict liability in tort cannot be commenced against a seller of a product unless the seller is also the manufacturer of the product or part of the product alleged to be defective. ^^ Thus, M & M argued that because it did not manufacture the natural gas system, it could not be liable under a strict liability theory even though it sold the product.^ ^ The court agreed and found that M & M could not be held liable under a strict liability theory as an apparent manufacturer.^^ The Pawlik case, addressed above in the "user" and "consumer" context, is the second of the three 2009 survey period decisions confronting the issue of whether a named defendant qualified as a "seller" ofa "producf under the IPLA. In Pawlik, the U.S. District Court the Northern District of Indiana addressed whether the manufacturer ofa product can be liable when the product's shipping package comes apart and causes injury.^^ In Pawlik, the plaintiff was injured while loading a crate containing duct heaters.^"^ Part of the crate detached, causing the plaintiffto fall backward and sustain injury.^^ The plaintiff sued the manufacturer of the duct heater. Industrial, who moved for summary judgment arguing that it was not the "manufacturer" ofthe crate for purposes ofthe IPLA.^^ 45. Id. 46. Id. 47. Mat 340-41. 48. /J. at 341-42. 49. Mat 342. 50. IND. Code § 34-20-2-3 (2008). 5 1 . Duncan, 898 N.E.2d at 342. The court noted that in Kennedy v. Guess, Inc. , 806 N.E.2d 776, 783 (Ind. 2004), the Indiana Supreme Court recognized the apparent manufacturer theory; however, the court noted that theory was recognized as applying only to negligence claims because Indiana Code section 34-20-2-3 specifically requires the seller to be a manufacturer ofthe product in order to be held liable on a strict liability theory. Id. 52. Id 53. No. 2:07 CV 220, 2009 WL 857476, at *5 (N.D. Ind. Mar. 27, 2009). 54. M at*l. 55. Id 56. Mat*2. 2010] PRODUCT LIABILITY 881 The court agreed with Industrial: "The crate contained and protected the Industrial products and was not meant to be opened and unpacked until its receipt at the installation site. Industrial does not sell crates, nor can Industrial be classified as a manufacturer of crates."^'' Because the crate was gratuitously provided as a means to transport the duct heaters, the court found that Industrial was not a "manufacturer" or "seller" of crates under the IPLA.^^ The third decision applying the IPLA's definition of a "seller" to a named defendant in a product liability case is Gibbs v. I-Flow, Inc.^^ The court's discussion about the "manufacturer" or "seller" requirement took place in the context of determining whether the plaintiffs motion for remand to state court should be granted.^^ In Gibbs, the plaintiff claimed that he suffered a complete loss of cartilage in his shoulder after the insertion of a pain pump that continuously released dangerous doses of anesthetics.^' The plaintiff sued the manufacturer of the pain pump, I-Flow, and the individual I-Flow sales representative, Rowland.^^ The plaintiff alleged that Rowland sold the pain pump, with knowledge of a defect in the product, to the plaintiffs doctor and instructed the plaintiffs doctor on the medications and procedure for filling the pain pump.^^ The defendants sought to remove the case to federal court, arguing that the plaintiffs fraudulentlyjoined Rowland to defeat diversity.^"* They argued that the plaintiff could not maintain product liability claim against Rowland because Rowland was neither a manufacturer nor a seller of the pain pump.^^ The court found that the plaintiffs properly joined Rowland because Rowland could be considered a manufacturer under Indiana Code section 34-6-2-77(a)( 1 ), which defines a manufacturer as a seller who has "actual knowledge of a defect in a product. "^^ On the motion to remand to state court, the district court had to determine whether there was a "reasonable possibility" that the plaintiffwould succeed on its product liability claim against Rowland.^^ The court found that Rowland could qualify as a manufacturer under Indiana Code section 34-6-2-77(a)(l) because the plaintiffalleged that Rowland had actual knowledge ofthe problems with the pain pump.^^ The court also found that Rowland could qualify as a seller under Indiana Code section 34-6-2-1 36 because, "as a sales representative, she was employed to promote and sell the pain pumps to doctors and medical 57. Mat*6. 58. Id 59. No. l:08-cv-708-WTL-TAB, 2009 U.S. Dist. LEXIS 14895 (S.D. Ind. Feb. 24, 2009). 60. Mat*l. 61. Mat*2. 62. Id at *3. 63. Mat*2-3. 64. Id at *3. 65. Mat*?. 66. Id at *8 (citing Ind. Code § 34-6-2-77(a)(l) (2008)). 67. Id at *6. 68. Id at *9. 882 INDIANA LAW REVIEW [Vol. 43:873 offices."^^ Thus, the court held that the plaintiff had a "reasonable possibility" of prevailing on his product liability claim against Rowland, and Rowland was not fraudulently joined.^^ C. Physical Harm Caused by a Product For purposes ofthe IPLA, "'[pjhysical harm' . . . means bodily injury, death, loss of services, and rights arising from any such injuries, as well as sudden, major damage to property."^' It "does not include gradually evolving damage to property or economic losses from such damage."^^ For purposes 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."^^ "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."^"* During the 2009 survey period, federal trial courts in Indiana twice issued decisions addressing whether "products" were involved. First, in Carlson Restaurants Worldwide, Inc. v. HammondProfessional Cleaning Services,^^ the plaintiffoperated a TGI Friday's restaurant in Merrillville, Indiana, which caught fire on May 10, 1996.'^^ The plaintiffsued Ansul Incorporated ("Ansul"), which manufactured the restaurant's fire suppression system.^^ The plaintiff claimed that the fire suppressant was "defective in design and unreasonably dangerous[,]" 69. Id 70. Mat*ll. 71. IND. Code § 34-6-2- 105(a) (2008). 72. Id § 34-6-2- 105(b); see, e.g., Miceli v. Ansell, Inc., 23 F. Supp. 2d 929, 933 (N.D. Ind. 1 998) (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 when 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). 73. Ind. Code § 34-6-2-1 14(a) (2008). 74. Id. § 34-6-2-1 14(b); see also Fincher v. Solar Sources, Inc., No. 42A01-0701-CV-25, 2007 WL 1953473, *6 (Ind. Ct. App. July 6, 2007) (mem.), trans, denied, 878 N.E.2d 218 (Ind. 2007) (agreeing with the trial court that coal sludge is not a product under the IPLA, but rather a "waste by-product ofa coal mining operation" that is "not marketable or ever in a marketed state," nor ever "intended for consumption or for any use by any consumer"). 75. No. 2:06 cv 336, 2008 U.S. Dist. LEXIS 91878 (N.D. Ind. Nov. 12, 2008). 76. /J. at* 1-4. 77. /J. at*2. 2010] PRODUCT LIABILITY 883 and that Ansul was negligent in its maintenance and service ofthe system^^ The Ansul system utilized a low pH chemical fire suppressant agent called "Ansulex."^^ The Ansul system was installed at the restaurant in March or April 1995.^^ Because of problems with Ansulex crystallizing and clogging the nozzles, Ansul implemented a program a few months later, in November 1995, under which technicians examined the tanks for crystallization and added EDTA to the tank to help prevent crystallization and corrosion.^ ^ The first such service visit inspection occurred on April 26, 1996, at which time an '"Ansul Inspected' sticker was affixed to the system to denote performance of the newly required corrective actions for prevention of crystallization, and the inspection report included the notation, 'Ansul Inspected EDTA added. '"^^ Because the plaintiffdid not file suit until October 6, 2006, Ansul moved for summary judgment, arguing that Indiana's ten-year product liability statute of repose^^ barred the claims.^"* The plaintiffresponded by arguing that although the system itself was delivered more than ten years before the fire, "the Ansulex chemical fire suppressant stored in the system tank and released upon heat sensor activation is the liability-triggering product."^^ The plaintiff contended that the delivery of the fire suppressant material in April 1996 in effect injected a new "liability-triggering product" into the mix, thereby triggering a new ten-year statutory repose period and precluding summary judgment.^^ The court agreed with the plaintiff, and denied the motion for summary judgment, reasoning as follows: Adding new Ansulex to the fire suppression system appears to be "merely adding a component, without extending the life of the original product" .... But adding EDTA to the defective Ansulex, which had been found to crystallize and corrode the fire suppression systems, in an effort to thwart crystallization . . . appears to be an attempt to extend the life of the original faulty chemical product. In short, the change in chemicals was not a mere repair, but is a restructuring or reconditioning . . . which Ansul described ... as "corrective actions" implemented to "eliminate the possibility of this situation affecting new systems."^^ In Chappey v. Ineos USA L.L.C.,^^ the plaintiff was an employee of a BP Amoco facility in Whiting, Indiana, who claimed that she "'became extremely 78. Id 79. Id 80. Mat*3. 81. Id 82. Id at *3-4. 83. IND. Code § 34-20-3-1 (2008). 84. Carlson, 2008 U.S. Dist. LEXIS 91878, at *4. 85. Id at *9. 86. Mat*9-ll. 87. Mat*ll-12. 88. No. 2:08-CV-271, 2009 U.S. Dist LEXIS 24807 (N.D. Ind. Mar. 23, 2009). 884 INDIANA LAW REVIEW [Vol. 43:873 ill and sickened with Legionnaires disease'" while working there.^^ Plaintiff offered various theories of liability, including negligence, negligence per se, nuisance, product liability and "one or more undisclosed 'Indiana labor law[s]."'^^ Her complaint, however, was vague about exactly what caused her alleged problems: she alleged only that "[m]anufacturer's [sic] supplied or installed unsafe items, including a water heater/system, plumbing device or other similar item at [her place ofemployment], which caused or contributed to cause dangerous levels of toxins, contaminants or bacteria ... to become present [there]."^^ Defendant INEOS and one of its related entities filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, contending that the plaintiffs allegations failed to identify a product.^^ The court agreed, concluding that the plaintiff had "not alleged that INEOS was a manufacturer or a seller of any product" and that she likewise had "failed to specifically identify a product."^^ Accordingly, the court dismissed her product liability claim.^"^ D. Defective and Unreasonably Dangerous Only products that are in a "defective condition" are subject to IPLA liability.^^ 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 ofhandling or consumption.^^ Recent cases confirm that establishing one of the foregoing threshold requirements without the other will not result in liability under the IPLA.^^ Claimants in Indiana may prove that a product is in a "defective condition" by asserting one or a combination ofthree theories: (1) the product has a defect in its design (a "design defecf); (2) the product lacks adequate or appropriate warnings (a "warning defect"); or (3) the product has a defect that is the result 89. Mat*2. 90. Mat*2-3. 91. Mat*13. 92. Id. 93. Mat*14. 94. Id. 95. IND. Code § 34-20-2-1 (2008); 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). 96. iND. Code § 34-20-4-1 (2008). 97. 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 unreasonablydangerous."(citingColev.LantisCorp.,714N.E.2d 194, 198 (Ind. Ct. App. 1999))). 2010] PRODUCT LIABILITY 885 of a malfunction or impurity in the manufacturing process (a "manufacturing defect").'' Although claimants are free to assert any ofthose 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]."^^ 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." '^^ 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. '^^ Aproduct is "unreasonably dangerous" only if its use "exposes the user or consumer to a risk of physical harm . . . beyond that contemplated by the ordinary consumer who purchases [it] with the ordinary knowledge about the product's characteristics common to the community ofconsumers."^ ^^ Aproduct 98. 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 1140; Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d 155, 161 (Ind. Ct. App. 1997); see also Troutner v. Great Dane Ltd., No. 2:05-CV-040-PRC, 2006 WL 2873430, *3 (N.D. Ind. Oct. 5, 2006) (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). 99. Ind. Code § 34-20-4-3 (2008). See also Hunt v. Unknown Chem. Mfr. No. One, No. IP 02-389-C-M/S, 2003 U.S. Dist. LEXIS 20138, at *27-37 (S.D. Ind. Nov. 5, 2003) (holding that homeowner who spread ashes from lumber treated with chromium copper arsenate on his garden could not pursue product liability claim because his use of the lumber was not, legally speaking, foreseeable, intended, or expected). 100. Ind. Code §34-20-4-4 (2008). 101. See id 102. 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 ofthe Indiana Court ofAppeals 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 1 140 (emphasis added) (citing Vaughn v. Daniels Co., 777 N.E.2d 1120, 1128 (Ind. Ct. App. 2002)). Those panels also seem to favor jury resolution in determining "reasonably expected use. Indeed, the Baker opinion states that "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 ofeach 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 fi*om 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 886 INDIANA LAW JIEVIEW [Vol. 43:873 is not 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. '^^ In cases alleging improper design or inadequate warnings as the theory for proving that a product is in a "defective condition," recent decisions, including some by Judge Hamilton, 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 dangerous." '^"^ The IPLA provides that liability attaches for placing a product in a "defective condition"'^^ in the stream of commerce even though: "(1) the seller has exercised all reasonable care in the manufacture and preparation ofthe product; and (2) the user or consumer has not bought the product from or entered into any contractual relation with the seller."'^^ 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 resolved the defective and unreasonably dangerous issue as a matter of law in a design defect context even in the presence ofdivergent expert testimony. See, e.g. , Burt v. Makita USA, Inc., 2 1 2 F. Supp. 2d 893, 900 (N.D. Ind. 2002) (holding that plaintiff injured when a blade guard on a circular table saw struck him in the eye "wholly failed to show a feasible alternative design that would have reduced the risk of injury"); see also Miller v. Honeywell Int'l, Inc., No. IP 98-1742 C-M/S, 2002 U.S. Dist. LEXIS 20478, at * 1-4 (S.D. Ind. Oct. 15, 2002) (finding that Honeywell's design specifications for planetary gears and gear carrier assembly within the engine of an Army UH- 1 helicopter were not defective as a matter oflaw at the time the specifications were introduced into the stream of commerce). 103. 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) (finding 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 v. Lantis Corp., 714 N.E.2d 194, 199 (Ind. Ct. App. 1999)). 104. ^eeConleyv. Lift-All Co., No. l:03-cv-0l200-DFH-TAB, 2005 U.S. Dist. LEXIS 15468, at *13-14 (S.D. Ind. July 25, 2005) (involving an alleged warnings defect); Bourne v. Marty Oilman, Inc., No. l:03-cv-01375-DFH-VSS, 2005 U.S. Dist. LEXIS 15467, at *l (S.D. Ind. July 20, 2005), aff'd, 452 F.3d 632 (7th Cir. 2006) (involving an alleged design defect). 105. iND. Code § 34-20-2-1 (2008). 106. M§ 34-20-2-2. 107. Id §34-20-2-2(1). 2010] PRODUCT LIABILITY 887 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.'^^ The statutory language, therefore, 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. '^^ 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. Courts have discussed strict liability even when those claims allege warning and design defects and clearly accrued after the 1995 IPLA amendments took effect.'*^ The IPLA makes clear that, just as in any other negligence case, a claimant advancing design or warning defect theories must satisfy the traditional negligence requirements: duty, breach, injury, and causation.' '^ Kovach v. 108. M§ 34-20-2-2. 109. 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 Nafl Bank & TiTist Corp. v. Am. Eurocopter Corp. (Mow II), 378 F.3d 682, 689 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 1 5467, 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 ofnegligence."); see also Miller v. Honeywell Int'l, Inc., No. IP 98- 1 742 C-M/S, 2002 U.S. Dist. LEXIS 20478, at *37-38 (S.D. Ind. Oct. 15, 2002); Burt v. Makita USA, Inc., 212 F. Supp. 2d 893, 899-900 (N.D. Ind. 2002); Birch ex rel Birch v. Midwest Garage Door Sys., 790 N.E.2d 504, 518 (Ind. Ct. App. 2003). 1 10. 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, 3-4 (S.D. Ind. Aug. 2, 2006); 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); Vaughn v. Daniels Co., 841 N.E.2d 1 133, 1 138-39 (Ind. 2006). 111. 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; 888 INDIANA LAW REVIEW [Vol. 43:873 Caligor Midwest, ^^^ a case decided during the 2009 survey period, nicely illustrates that point. Indeed, perhaps no Indiana decision has better articulated the concept that plaintiffs must establish all negligence elements, including causation, as a matter of law in a product liability case to survive summary disposition. In Kovach, a nine-year-old boy was diagnosed with enlarged nasal tissue that caused a variety of complications. ^'^ He underwent surgery for the condition and following the procedure was prescribed 15 milliliters (mL) of acetaminophen with codeine for pain relief ' '"^ After the surgery, a nurse gave the boy the medicine in a translucent medicine cup with translucent interior markings for measuring liquids. ^ '^ The nurse was familiar with the medicine cup she used, had used it frequently before, and understood how to interpret its markings. ^^^ She claimed that she filled the cup halfway and gave the boy 15 mL of the drug as prescribed, but the child's father, who was in the room, testified that the cup was fuU.^^^ After being discharged and returning home, the boy went into respiratory arrest and was transported to a hospital, where he died from asphyxia.^ '^ An autopsy revealed that the boy had died of an opiate overdose. '^^ At the time of his death, his blood contained more than twice the recommended therapeutic level of codeine. ^^^ The boy's parents sued, among others, the manufacturers and distributors of the medicine cup (the "Cup Defendants") under theories ofnegligence and strict liability under the IPLA, breach of implied warranty of merchantability, and implied warranty of fitness for a particular purpose. ^^* The parents claimed that their son's codeine overdose resulted from imprecise markings on the medicine !22 cup. The Cup Defendants successfully moved for summaryjudgment. '^^ One of their arguments was that no causal connection existed between the alleged defects in the cup and the child's codeine overdose.'^'* The plaintiffs offered opinion testimony from an associate professor of pharmacology who had and (4) [the defendant's] alleged failure to provide adequate warnings was the proximate cause of his injuries.") (citations omitted). 112. 913 N.E.2d 193 (Ind. 2009), reh 'g denied. No. 49S04-0902-CV-88, 2009 Ind. LEXIS 1514(Ind. Dec. 3,2009). 113. Mat 195. 114. Id 115. Id 116. Id 117. Id 118. Id 119. Id 120. Id 121. Mat 195-96. 122. Id at 196. 123. Id at 196, 200. 124. Id at 196. 2010] PRODUCT LIABILITY 889 analyzed the cup and determined that it was not suitable for measuring and dispensing precise doses ofmedication. '^^ That opinion testimony estimated that measurements performed using the medicine cup posed a twenty percent to thirty percent chance of error. The professor concluded that any of the cup's volume measurements would have a twenty percent to thirty percent margin of error. ^^^ The Cup Defendants tried unsuccessfully to exclude the plaintiffs opinion witness. '^^ The plaintiffs appealed the entry of summary judgment for the Cup Defendants and the Cup Defendants cross-appealed the denial oftheir motion to exclude the plaintiffs' opinion testimony. ^^^ The court of appeals reversed the entry of summary judgment, determining that the trial court did not err in admitting and considering the opinion witness's affidavit. '^^ ChiefJudge Baker dissented from the majority opinion, opining that the plaintiffs had failed to establish that a defect in the cup was the proximate cause oftheir son's death. ^^^ The Indiana Supreme Court agreed with ChiefJudge Baker's dissent, finding no causal connection between the alleged design and warning defects and the overdose. ^^' The Kovach court reasoned that "proximate cause" consisted of both factual causation and scope of liability. ^^^ The court noted that "[t]o establish factual causation, the plaintiff must show that but for the defendant's allegedly tortious act or omission, the injury at issue would not have occurred."^^^ For the scope of liability doctrine, the question is "whether the injury was a natural and probable consequence ofthe defendant's conduct, which in the light of the circumstances, should have been foreseen or anticipated."'^^ Courts impose liability only in when the ultimate injury was a reasonably foreseeable consequence ofthe defendant's tortious act or omission. '^^ The court then wrote that even though causation-in-fact is ordinarily a factual question for thejury, the issue can become a question oflaw to be resolved by the court "where reasonable minds cannot disagree as to causation-in-fact."'^^ Although the Indiana Supreme Court acknowledged that witness testimony conflicted about whether the medicine cup was halffull or full, it did not fmd this 125. Id. 126. Id. ni. Id 128. Id 1 29. Id. For a full analysis and discussion ofthe court ofappeals's decision, see Alberts et al, supra note 41, at 1 1 18-23, 1 141-42. 130. ii:ovac/z,913N.E.2datl96. 131. Mat 198-99. 132. Id. at 197 (citing City ofGary ex rel. King v. Smith & Wesson Corp!, 801 N.E.2d 1222, 1243-44 (Ind. 2003)). 133. Id at 197-98 (citing City ofGary, 801 N.E.2d at 1243-44). 134. Id at 198 (citing City ofGary, 801 N.E.2d at 1244). 135. Id 136. Id (citing Peters v. Forster, 804 N.E.2d 736, 743 (Ind. 2004)). 890 INDIANA LAW REVIEW [Vol. 43 : 873 dispute convincing. ^^^ The boy was prescribed 15 mL of acetaminophen with codeine, half the volume of the cup.'^^ A full cup would have contained twice as much pain reliever, approximately 30 mL.^^^ The cup was translucent, and the medicine at issue was red.^"^^ The nurse administering the medication knew that she was to dispense a halfcup (15 mL) and anyone who saw the cup would have been able to see whether it was half full or fuU.'"^^ Moreover, the boy's father testified that he observed the nurse give the boy a full cup of the medicine and an autopsy revealed that the boy had twice the therapeutically indicated amount ofcodeine in his blood. '"^^ The court concluded that imprecise measurements on the dosing cup did not cause the boy's tragic death was not caused by imprecise measurements on the dosing cup, but instead by the fact that he received a double dose ofcodeine. '"^^ The court declined to attribute his death to any design defect in the cup.^"^"^ The Indiana Supreme Court declined to address whether a warning against the cup's use for precise measurements was needed in the case at hand or in other circumstances because even had the warning been given, it would not have prevented the boy's death. '"^^ The court discussed the court ofappeals use ofthe "read-and-heed" presumption to establish causation and concluded that the presumption did not eliminate the need to prove causation in failure-to-wam cases. ^"^^ The court wrote that, "[t]he most the presumption does is establish that a warning would have been read and obeyed. It does not establish that the defect in fact caused the plaintiffs injury."^"^^ The plaintiff still must establish causation by showing "that the danger that would have been prevented by an appropriate warning was the danger that materialized in the plaintiffs case."^'*^ If the "read-and-heed" presumption had been applied, then the court would assume the surgical nurse "would have read such a warning and chosen a precision applicator to administrate the codeine."^"^^ But the boy's death still would have occurred because a double dose ofcodeine caused the death, notjust an imprecise dose.^^^ In other words, the type ofharm the warning targeted did 137. Id. 138. Id. 139. Id 140. Id 141. Id 142. Id 143. Id 144. Id 145. Id 146. Id at 199. 147. Id 148. Id. (citing 2 Dan D.DOBBS, The Law OF Torts §367 (2001); 1 David G. Owen etal., Madden & Owen on Products Liability §9:11 (3d ed. 2000)). 149. Id 150. Id 2010] PRODUCT LIABILITY 891 not cause the boy's death. ^^' This Survey also addresses in detail a handful of cases in which plaintiffs attempted to demonstrate that products were defective and unreasonably dangerous under theories of warning, design, and manufacturing defect. 1. 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. '^^ In failure to warn cases, the "unreasonably dangerous" inquiry is essentially the same as the requirement that the defect be latent or hidden. ^^^ Federal and state courts in Indiana have been busy in recent years when addressing issues in cases involving allegedly defective warnings and instructions. Some of those cases include: Deaton v. Robison,^^"^ Clark v. 15L Id 152. IND. Code § 34-20-4-2 (2008); see also Deaton v. Robison, 878 N.E.2d 499, 50 1 -03 (Ind. Ct. App. 2007), trans, denied, 89 1 N.E.2d 49 (Ind. 2008); Coffinan v. PSI Energy, Inc., 8 1 5 N.E.2d 522, 527 (Ind. Ct. App. 2004) (both noting the standard for proving a warning defect case). 153. See First Nati Bank & Trust Corp. v. Am. Eurocopter Corp. {Mow II), 378 F.3d 682, 690 n.5 (7th Cir. 2004). For a more detailed analysis oilnlow II, see Joseph R. Alberts, Survey of Recent Developments in Indiana Product Liability Law, 38 iND. L. REV. 1205, 1221-27 (2005). 154. 878 N.E.2d 499 (Ind. Ct. App. 2007), trans, denied, 891 N.E.2d 49 (Ind. 2008). In Deaton, the Indiana Court of Appeals affirmed the trial court's judgment in favor of the manufacturer of a black powder rifle that the plaintiff alleged to be defective and unreasonably dangerous. Id. at 500-01 . The court concluded that the rifle was not an unreasonable or concealed hazard for purposes of the IPLA, but rather, a manifest and obvious risk that the plaintiffs appreciated. Id. at 503-04. For a more complete discussion oiDeaton, see Alberts et al., supra note 41, at 1110-14. Practitioners and judges in Indiana . . . should be mindful that application ofthe "open and obvious" concept can be used in at least two different ways: (1) in determining whether a product is "unreasonably dangerous" because unreasonable danger depends upon the reasonable expectations ofexpected users and the obviousness ofthe risk will eliminate the need for any further protective measures; and (2) in determining whether the "incurred risk" defense applies. M at 1 1 14 (footnotes omitted); see also Ind. Code § 34-20-6-3 (2008). Practitioners and judges in Indiana should also recognize that Deaton . . . analyzed the openness and obviousness of a product's condition and ultimately concluded, as a matter of law, that the products at issue did not present an unreasonable, concealed hazard. Whether the same decision would have been reached as a matter of law in the context ofthe "incurred risk" statutory defense is a more difficult question because the defense requires a defendant to establish that the user actually knew about the product's 892 INDIANA LAW REVIEW [Vol. 43:873 Oshkosh Truck Corp.,^^^ Ford Motor Co. v. Rushford;^^^ Tober v. Graco Children 's Products, Inc.;^^^ Williams v. Genie Industries, Inc.;^^^ Conley v. Lift- All Co.;^^^ First National Bank & Trust Corp. v. American Eurocopter Corp. (Inlow IT);^^^ and Birch v. Midwest Garage Door Systems. ^^^ danger. Alberts et al., supra note 4\,at \l\4; see also IND. Code §§ 34-20-6-3(1 )-(2) (2008). No such requirement exists when the "open and obvious" concept is used to support the argument that a product is not unreasonably dangerous because of the open and obvious nature of the danger it presents. The latter is based upon a "reasonable user expectation" standard, not an actual knowledge standard. Alberts et al., supra note 41, at 1 1 14. 155. No. l:07-cv-0131-LJM-JMS, 2008 WL 2705558 (S.D. Ind. July 10, 2008). The Clark court precluded a repossession agent who suffered injuries when he slipped raised rollback bed of the truck he used from pursuing a failure-to-wam claim against the truck manufacturer. Id. at *4. The court concluded that the manufacturer had no duty to warn ofany dangers associated with the rollback bed's open and obvious condition because, among other things, the agent was aware ofthe bed's slick nature. Id. The court did, however, conclude that he had designated enough evidence to pursue claims that the manufacturer failed to provide adequate instructions on how to operate the rollback bed. Id. at *5. Clark may prove troublesome to those trying to interpret and apply it because the court allowed the plaintiffs to proceed to trial on a failure to instruct theory despite having made an initial determination that the slippery truck bed and the risk of falling on it was obvious and did not present an unreasonably dangerous condition. The IPLA and recent case law suggest that the better approach for courts to take is to first determine whether the defective condition from which the product allegedly suffers would, as a matter oflaw and under all relevant circumstances, thereby also render it unreasonably dangerous. E.g. , Bourne v. Marty Oilman, Inc., 452 F.3d 632, 636-37 (7th Cir. 2006). If not, the inquiry should be at an end even if it is possible that a plaintiff could present sufficient evidence to defeat summaryjudgment concerning whether the product could be said to be in a "defective condition." Id. at 635. In that context, the Clark decision is peculiar because it reached the conclusion that the defective condition (the slippery rollback bed) did not render the truck unreasonably dangerous as a matter of law, yet the court nevertheless resurrected the plaintiffs' claim because there was arguably sufficient evidence to demonstrate that the manufacturer's use instructions could have been better. Clark, 2008 WL 2705558, at *4-5. For a more detailed discussion on these and related issues, see Alberts et al., supra note 41, at 1 1 14-18. 1 56. 868 N.E.2d 806 (Ind. 2007). For a more detailed discussion and commentary about Rushford, see Joseph R. Alberts et al.. Survey ofRecentDevelopments in Indiana Product Liability Law, 41 Ind. L. Rev. 1 165, 1 184-87 (2008). 157. 431 F.3d 572 (7th Cir. 2005). For more detailed discussion and commentary about Tober, see Joseph R. Alberts & James Petersen, Survey ofRecentDevelopments in Indiana Product Liability Law, 40 iND. L. REV. 1007, 1028-30 (2007). 158. No. 3:04-CV-217 CAN, 2006 WL 1408412 (N.D. Ind. May 19,2006). For more detailed discussion and commentary about Williams, see Alberts & Petersen, supra note 157, at 1032-33. 159. No. l:03-cv-01200-DFH-TAB, 2005 U.S. Dist. LEXIS 15468 (S.D. Ind. July 25, 2005). 160. First Nat'l Bank & Trust Corp. v. Am. Eurocopter Corp. (Inlow II), 378 F.3d 682 (7th Cir. 2004). In the Inlow case, 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. 2010] PRODUCT LIABILITY 893 The 2009 survey period produced additional cases involving warning defect theories that merit discussion here. First, in Cook v. Ford Motor Co.,^^^ the plaintiffs filed suit against Ford after their daughter suffered a serious brain injury when the front passenger side air bag in the family's 1997 F-150 pickup truck deployed during an accident. ^^^ The air bag at issue could be manually disabled. ^^"^ The plaintiffs claimed that their daughter's injury resulted from defective instructions and warnings concerning the air bag and its deactivation switch. '^^ The injured girl's mother was the primary driver of the vehicle and, before the collision, had read neither the owner's manual nor any ofthe warnings inside the vehicle. '^^ The injured girl's father had reviewed a section of the owner's manual explaining how and when to engage the four-wheel drive and deactivate the front passenger side air bag.^^^ At the top of one ofthe pages in the owner's manual was a colored box marked with a triangle and an exclamation point contained the following language: "Keep the passenger air bag turned on unless there is a rear-facing infant seat installed in the front seat. When the passenger air bag switch is turned off, the passenger air bag will not inflate in a The Seventh Circuit Court ofAppeals held 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. 161 . 790 N.E.2d 504 (Ind. Ct. App. 2003). In Birch, a young girl sustained serious injuries when a 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 to an applicable federal safety regulation, in and ofitself, does not make a product defective. M at 5 1 5, 5 1 8- 1 9. Additionally, the court concluded that there was no duty to warn the plaintiffs about changes to federal safety regulations because the system manual the plaintiffs received included numerous warnings about the type of system installed and that no additional information would have added to the plaintiffs' understanding ofthe product. Id. at 516, 518-19. For a more detailed analysis ofBirch, see Joseph R. Alberts & Jason K. Bria, Survey ofRecent Developments in Product Liability Law, 37 iND. L. REV. 1247, 1262-64 (2004); see also Burt v. Makita USA, Inc., 212 F. Supp. 2d 893, 895-96 (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); McClain v. Chem- Lube Corp., 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 product's inherent dangers, because evidence showed that both defendants knew that the product at issue was to be used at high temperatures during welding), disapproved by Shultz v. Ford Motor Co., 857 N.E.2d 977 (Ind. 2006). For a more detailed analysis ofBurt and McClain, see Alberts & Boyers, supra note 35, at 1 183-85. 1 62. 913 N.E.2d 3 1 1 (Ind. Ct. App. 2009), trans, denied. No. 49A02-0802-CV- 1 30, 20 1 Ind. LEXIS 184 (Ind. Feb. 25, 2010). 163. Mat 3 15. 164. Mat 316. 165. Mat 315. 166. Mat 316. 167. Id 894 INDIANA LAW REVIEW [Vol. 43:873 collision."'^^ After reading this page, the girl's father believed that the only time the front passenger side air bag needed to be deactivated was when a child sat in a rear facing child seat in the front seat.^^^ Like his wife, he never read the warning on the sun visor that read: WARNING TO AVOID SERIOUS INJURY: For maximum safety protection in all types ofcrashes, you must always wear your safety belt. Do not install rearward-facing child seats in any front passenger seat position, unless the air bag is off Do not sit or lean unnecessarily close to the air bag. Do not place any objects over the air bag or between the air bag and yourself See the Owner's Manual for further information and explanations.'^^ In addition to the aforementioned warnings that neither ofthe girl's parents examined, the owner's manual also contained warnings and information in the section "Seating and safety restraints."'^' This section instructed all occupants to wear safety belts and ensure that children be seated where they could be properly restrained to prevent risk of injury.'^^ Another page of the owner's manual read, "if possible, place children in the rear seat of your vehicle. Accident statistics suggest that children are safer when properly restrained in rear seating positions than when they are restrained in front seating positions." '^^ At the time of the accident, the girl was riding in the front seat of the truck, her two-year-old brother secured in a car seat in the back seat.'^"^ Before the collision, the girl had unbuckled her seat belt, leaving her unrestrained when the truck was rear-ended. '^^ The girl sustained major head trauma when the front air bag deployed. '^^ The plaintiffs presented their claims against Ford to ajury for several days. ' ^^ Before the trial's conclusion. Ford moved for a directed verdict and requested a mistrial. '^^ The court granted Ford's motion for a mistrial and scheduled a second trial. '^^ Before the second trial, the court granted Ford's motion for 168. Id. 169. Id. 170. Id 171. Id 172. Id. at 316-17. "[E]ach warning is in a colored box marked with an exclamation point inside a triangular symbol." Id. at 317. 173. Id 174. Id 175. Id 176. Id 177. Mat 317-18. 178. Mat 318. 179. Id 2010] PRODUCT LIABILITY 895 summary judgment with respect to the failure to warn claim and, thereafter, entered final judgment. ^^^ The Indiana Court of Appeals reversed, concluding that a manufacturer's duty to warn encompasses both a duty to provide instructions for the safe use of a product, and a duty to provide a warning about the inherent dangers of improper use of the product. ^^' The Cook court then noted that a negligence standard governed warning and instruction defect claims under the IPLA and, consequently, a party making the claim must establish that the manufacturer or seller failed to exercise reasonable care under the circumstances. ^^^ After first determining that federal law does not preempt plaintiffs warning and instruction claims, the court of appeals turned to the adequacy of Ford's warnings and instructions.'^^ Plaintiffs claimed that the trial court erred when it granted Ford's motion for summary judgment because there were factual questions concerning whether the owner's manual instructions and warnings were defective and caused the girl's injury. '^"^ Relying on Indiana's read-and- heed presumption,'^^ Ford countered that the parents' failure to read the warnings and instructions contained in the owner's manual defeated their claims. '^^ The court did not agree. '^^ Initially, the court noted that there was no doubt that Ford owed a duty to provide warnings about the truck's air bags.'^^ Ford's warning in the owner's manual instructed owners to leave the front passenger side air bag on unless a rear facing child seat was in the front seat.'^^ The plaintiffs designated opinion testimony that air bags posed a danger to all children in the fi'ont seat, not just those in rear-facing child seats, as well as testimony from a Ford engineer suggesting that Ford was aware as early as the mid-1990s that airbags posed a danger to children. '^^ Further, the girl's father testified that he was aware of Ford's directive to deactivate the air bag if a rear facing child seat was placed in the front seat, but all of the other instructions in the owner's manual (which he 180. Id. 181. M at 319, 331 (citing Rushford v. Ford Motor Co., 868 N.E.2d 806, 810 (Ind. 2007)). 182. Id. at 319-20 (quoting iND. CODE § 34-20-2-2 (2008)). 1 83. A substantial portion ofthe court's analysis addresses whether federal law preempts the plaintiffs' claims. We address that portion ofthe court's decision concerning federal preemption in Part IV, infra. 184. CooA:,913N.E.2dat326. 1 85. "[WJhere [a] warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in [sic] defective condition, nor is it unreasonably dangerous." Id. at 326, n. 8 (quoting Dias v. Daisy- Heddon, 390 N.E.2d 222, 225 (1979) (quoting Restatement (Second) of Torts § 402A, cmt. j (1976)). 186. Mat326n.8. 187. Mat 326-31. 188. Mat 326. 189. Id 190. Id 896 INDIANA LAW REVIEW [Vol. 43 : 873 read after the accident) would not have altered his conduct because none ofthem would have contradicted his beliefthat the air bag provided greater protection to a front seat occupant. ^^^ The court of appeals pointed out that whether an act or omission is a breach of a duty is often a question of fact reserved for a jury.^^^ Even if the court employed the read-and-heed presumption, the owner's manual directed users to leave the air bag on unless a rear facing child seat was placed in the front seat.^^^ The parents testified that the other warnings and instructions contained in the owner's manual would not have altered their conduct because these warnings did not alert them to the dangers air bags posed to children seated in the front seat. This testimony, coupled with Ford's use of permissive language in other instructions (such as to place children in the rear seat ifpossible), lead the court to conclude that a jury should decide whether Ford's warnings were adequate.^^"^ The court next addressed proximate cause. ^^^ Plaintiffs claimed that "but for" Ford's failure to instruct them to deactivate the air bag for all child passengers or to specifically warn about the dangers the air bag posed to children, their daughter's injury would not have occurred. ^^^ Ford, on the other hand, claimed that the instructions were not the proximate cause of the injury because had the parents read and heeded the instructions to place their daughter in the back seat and to remain belted at all times, her injuries either would not have occurred or would not have been as severe. *^^ Neither party disputed that the child's injury would not be as severe had she remained belted. ^^^ Similarly, neither party disputed that the girl's injuries would not have occurred at all had she been in the back seat.'^^ Nonetheless, again because the court believed the language Ford employed in its warnings was permissive (directing owners to place children in the back seat "if possible") the court concluded that a question of fact remained for the jury to decide whether the failure to place the girl in the back seat was a reasonably foreseeable intervening cause.^^^ Gibbs V. I-Flow, Inc.^^^ is another warnings defect case decided during the 2009 survey period that deserves some detailed analysis. In Gibbs, the court discussed the learned intermediary doctrine in the context ofa motion to remand to state court.^^^ The plaintiff brought a failure to warn claim after a pain pump manufactured by I-Flow and sold by a sales representative Rowland allegedly 191. Mat 326-27. 192. Mat 327. 193. Mat 327-28. 194. Id. 195. Mat 328. 196. Id. 197. M 198. M 199. Id 200. Mat 330-31. 201. No. l:08-cv-708-WTL-TAB, 2009 U.S. Dist. LEXIS 14895 (S.D. Ind. Feb. 24, 2009). 202. Mat*12. 2010] PRODUCT LIABILITY 897 injured him.^^^ The defendants argued that the plaintiffs fraudulently joined Rowland to defeat diversity.^^"^ The defendants claimed that under the learned intermediary doctrine, the plaintiffcould not succeed on a claim against Rowland because the plaintiffs physician was an intermediary who should have recognized the danger and warned the plaintiff accordingly.^^^ The learned intermediary doctrine provides that "there is no duty to warn when a product is sold to a 'knowledgeable or sophisticated intermediary' whom the manufacturer has wamed."^^^ But "the intermediary must have knowledge or sophistication equal to that of the manufacturer, and the manufacturer must be able to rely reasonably on the intermediary to warn the ultimate consumer."^^^ The plaintiff argued that Rowland knew about the risks ofthe pain pump but failed to inform the plaintiffs doctor of these risks.^^^ The plaintiff also claimed that Rowland misrepresented the facts regarding the risks.^^^ Based upon these allegations, the court could not conclude that the learned intermediary doctrine would bar plaintiffs claims against Rowland; thus, remand was appropriate.^ ^^ 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.^^' 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.^*^ One panel of the Seventh Circuit (Judge Easterbrook writing) 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. "^'^ Phrased in a slightly different way, "[t]he [p]laintiffbears the burden ofproving 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. "^'"^ 203. Mat*2. 204. Mat*3. 205. Mat*12-14. 206. Id. at *12 (quoting Taylor v. Monsanto Co., 150 F.3d 806, 808 (7th Cir. 1998)). 207. Id. (quoting Taylor, 150 F.3d at 808). 208. Mat*13. 209. Id 210. Mat*13-14. 211. 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 ifone is appropriate. See, e.g.. Bourne v. Marty Oilman, Inc., No. 1 :03-cv-01375-DFH-VSS, 2005 U.S. Dist. LEXIS 15467, at *10-20 (S.D. Ind. July 20, 2005), aff'd, 452 F.3d 632 (7th Cir. 2006). 212. See Whitted v. Gen. Motors Corp., 58 F.3d 1200, 1206 (7th 1995); Burt v. Makita USA, Inc., 212 F. Supp. 2d 893, 900 (N.D. Ind. 2002). 213. McMahon v. Bunn-o-matic Corp., 150 F.3d 651, 657 (7th Cir. 1998). 214. Westchester Fire Ins. Co. v. Am. Wood Fibers, Inc., No. 2:03-CV-178-TS, 2006 WL 3 147710, at *5 (N.D. Ind. Oct. 3 1 , 2006) (citing Bourne, 452 F.3d at 638). Another recent Seventh 898 INDIANA LAW REVIEW [Vol. 43 : 873 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.^'^ In the specific context of the IPLA, it is clear that design defects in Indiana are judged using a negligence standard.^*^ As such, a claimant can hardly fmd a manufacturer negligent for adopting a particular design unless he or she can prove that a reasonable manufacturer in the exercise ofordinary 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.^*^ 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 ofbeing made safe for its reasonably expectable use, when manufactured, sold, handled, and packaged properly."^ ^^ 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 ofIndiana, Inc?^^ In federal court, under a Celotex^^^ standard, a manufacturer may file for summary judgment 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 of the safer, feasible alternative design.^^^ Regardless ofthe procedure governing the motion itself, the claimant still must prove the existence of a safer, feasible alternative design to rebut the Circuit case postulates that a design defect claim under the IPLA requires applying the classic formulation ofnegligence: B [burden ofavoiding the accident] < P [probability ofthe 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) (explaining Judge Learned Hand's articulation of the "B