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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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