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. This state's high court has spoken, the fair question is answered. Years ago the Seventh Circuit footnoted the following in the context of court access: "[2] Dr. Bowman's report specifically stated that Brown "firmly believes he is obligated as a Christian to put obedience to God's laws above human laws." Dr. Bowman further noted that Brown expressed "devaluing attitudes towards pharmacological or psycho-therapeutic mental health treatment" and that he made "sarcastic remarks devaluing authority of all types, especially mental health authority and the abortion industry." 668 F.3d 437 (2012) SUCH acid testing of statist orthodoxy is just and meet in Indiana. SUCH INQUISITIONS have been green lighted. Christians and conservatives beware.

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