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Summary judgments on federal preemption are reversible error

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The Indiana Court of Appeals has found an exterminator and the insecticide maker should not have been granted summary judgments on the issue of federal preemption.

In John Gresser and Janice Gresser, et al. v. The Dow Chemical Company, Inc; Dowelanco n/k/a Dow Agrosciences LLC; and Reliable Exterminators, Inc., 79A02-1111-CT-1014, the appeals court affirmed in part, reversed in part and remanded for further proceedings.

Among its findings, the COA ruled that the trial court erred by granting summary judgment in favor of Dow Chemical Company and Reliable Exterminators on the issue of federal preemption.

The Gresser family filed product liability claims against Dow and negligence claims against Reliable after they began experiencing an array of health problems. They contend the pesticide made by Dow and used by Reliable to kill termites caused a host of physical and cognitive aliments which forced them to eventually move out of their home.

The lower court determined that the Gressers’ product liability and negligence claims were preempted pursuant to PLIVA, Inc. v. Mensing, 131, S.Ct. 2567 (2011).

The Gressers appealed.

In regards to the federal preemption, the COA ruled that because the Gressers did not establish their product liability claims against Dow under Indiana Product Liability Act, the chemical company is not required to defend against these claims. Consequently there is no viable conflict preemption issue under PLIVA.  

In addition, the Gressers’ claim that Reliable failed to warn does not render compliance with both state and federal law impossible, the COA held. Pointing to Dow Chemical Co. v. Ebling, 753 N.E.2d 633, 640 (Ind. 2001), the court noted the use of state tort law to further disseminate label information facilitates rather than frustrates the objective of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and does not burden an applicator’s compliance with FIFRA.


The COA affirmed summary judgment to Dow on Gressers’ failure to warn claims under IPLA. The court also correctly denied Reliable’s summary judgment motions pertaining to the Gressers’ negligence claims and the possibility of a punitive damage award, the judges ruled.

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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