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. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...